What To Do When a Tenant Breaks the Lease

Your tenant may believe they have a great reason to break their lease, but as a landlord — even if you’re sympathetic to your renter’s situation — a broken lease is a frustrating inconvenience. The tenant has signed a lease to occupy the unit, abide by your policies and pay rent for the agreed period of time, but then notifies you that they want to break the lease before the renewal deadline. It’s time to deal with an unexpected vacancy and iron out the financial obligations in the lease contract so you don’t end up with the short end of the stick.

Here are a few steps you can take when dealing with a broken lease.

Be proactive

Inform tenants that a lease agreement is legally binding before they sign it. Many tenants don’t understand the ramifications of breaking a lease; they might be aware that they’re supposed to stay for the entire lease term, but could assume there’s some flexibility. Explain the legal aspects of a lease and the course of action for breaking one, such as finding a subletter (if you allow it), giving up the security deposit or paying rent for the remaining months.

Some leases include an “early termination” clause, which lets the renter out of the lease, without penalty, under certain circumstances. You can decide whether to include such a clause — but if you don’t want to, and you are using a generic lease form, make sure it does not allow for early termination.

Require notice in writing

Ask your tenant to provide a written request to terminate the lease early, either through email or on paper, which explains their reason for leaving. Issues like loud neighbors, taking a job in another area, inconvenient parking or moving in with a significant other don’t require you to release a tenant from the lease.

But, other circumstances can justify breaking a lease without penalty. If you have neglected to make needed repairs or otherwise failed to provide a safe and livable property, a tenant has a good case for breaking their lease. In addition, leaving for military duty or relocating due to an employer-mandated job change are valid reason for you to comply with the tenant’s request. Check your state laws for specific exemptions.

Hold the tenant responsible — within reason

Just because the tenant is vacating the property doesn’t mean they aren’t responsible for the home. The lease is a legally enforceable document stating that the landlord has given up possession to the unit for a specified amount of time in return for rent. Even if the leaseholder finds a subletter, they retain the responsibilities for damages and payments until the end of the lease.

While the leaseholder has a legal responsibility, most states require landlords to make a reasonable effort to find a new tenant; purposefully leaving the unit vacant in order to collect rent from a tenant who’s broken their lease is not usually permitted.

Know your rights and responsibilities as a landlord

A tenant breaking a lease prematurely might put you in a tight spot, but you can always seek legal advice. Professionals will know the ins and outs of the landlord laws in your state and can help you determine the right course of action. Be sure you’ve read through your lease agreement carefully — landlords and tenants alike can miss details in the fine print, and it’s in your best interest to be fully informed about your lease as well as local statues.

 

Woman Who Made A Mistake

Top 10 Mistakes Landlords Make

People enter the landlord business for many different reasons. Maybe you’re an “accidental landlord” who decided to rent out your former residence, or you gained a property through an inheritance. Or, maybe you diligently researched properties for sale and chose to purchase one (or more) as an extra source of income. Regardless of how or why you entered the business, being a landlord can be a profitable endeavor — or a costly one if you stumble into some common pitfalls.

Here are 10 of the most common mistakes landlords make and how to avoid them.

1. (Not) Understanding your local market

The three most important words in real estate investing continue to be location, location, location. This is two-fold: First, it means making sure your rental is in a desirable area so you can attract more potential tenants. Just because the price is right doesn’t mean that the location is. Get to know the neighborhood, including access to transportation, grocery stores, area features and businesses. Second, understanding your location means learning about the dynamics of the local market, researching area taxes and determining what you can charge for rent — all of which are key to estimating the return on investment for your property so you can predict your monthly rental income.

2. (Not) Understanding fair housing laws

Before you start looking for tenants, you need to understand fair housing and discrimination laws; otherwise, you risk getting into legal trouble. Fair housing laws are federal statutes that ensure equal access to housing for everyone. It is illegal to discriminate against anyone on the basis of race, color, religion, national origin, sex, familial status or disability. Many local and state governments have additional protections that you’ll want to become familiar with. A general rule of thumb is to focus on the property and amenities in your advertising and conversations — not on who you think the ideal tenants would be or features geared toward a specific group. The bottom line is to treat and communicate with every applicant and renter in the same way.

3. (Not) Putting your best marketing foot forward

While advertising a rental property may not be as sexy as advertising a hot new car, there are many similarities. Just like the best product ads, you’ll want to feature high-quality photos of your rental — and the more, the better. It’s worth the expense to have professional photos taken during the spring and summer months so your property looks its best. You’ll also want a clearly written, accurate and error-free description of the property and amenities. Consider posting your property for free on Zillow Rental Manager to reach as wide of an audience as possible.

4. (Not) Conducting a thorough tenant screening

While speed is important in filling your vacancy, you still want to choose a highly qualified renter. Create a documented process and criteria for finding, screening and securing your tenants. Make each potential renter fill out an application and verify everything from employment to past addresses (and get landlord references while you’re at it). You’ll want to perform a tenant background check and run a tenant credit report. Confirm that renters have paid the rent on time and have not caused problems for their previous landlords or employers.

5. (Not) Completing accurate leasing paperwork

A lease serves as a binding, legal agreement between you and the tenant. As such, you’ll want to make sure it thoroughly addresses the rules, policies, and conflict resolution procedures for living on your property, and clearly defines tenant and landlord responsibilities. Remember to put everything down in writing: A handshake or verbal agreement won’t hold up in court. You can find many generic leases online, but you’ll want to review the lease requirements specific to your state or municipality and incorporate them into your rental agreement. Have it examined by a legal professional to ensure that the terms protect your interests and comply with local and state regulations.

6. (Not) Knowing your landlord responsibilities

Securing a tenant for your property is a huge milestone. But, your work is not done. As a landlord, it’s your job to meet your terms of the lease agreement: Check in with your tenants, keep tabs on the condition of the property, complete regular preventative maintenance and seasonal maintenance, and respond quickly to requests. Make sure your property is a healthy and safe place to live, and that you keep up on your taxes and financial reporting. Neglecting your tenants and your property can result in higher turnover, more vacancies, less rental income or even lawsuits.

7. (Not) Anticipating maintenance costs

Be prepared for the possibility that your property won’t always be occupied. If you aren’t able to fill a vacancy right away, do you have enough cash set aside to pay for the mortgage, utilities and other maintenance costs? Maintaining a rental property comes with unforeseen expenses, such as damages and unexpected repairs, and the bills still need to be paid. Complete a cash flow analysis and establish a budget so you’ll be able to cover these potential costs, then track your expenses to ensure you’re staying in the black.

8. (Not) Knowing when to hire a professional

If you live in the area, are handy around the house and have the time to quickly respond to requests, you can maximize your rental income by handling some of the general maintenance and management of your property. However, if you have several properties or are juggling an investment on top of a full-time job, you may be better off enlisting the services of a professional property manager. Also, depending on your experience and the condition of the rental after your tenants leave, you might want to hire a contractor to make significant improvements or repairs.

9. (Not) Managing your time efficiently

For many landlords, managing even one investment property can be a full-time job. Between securing a tenant and keeping up the books, you should understand that any investment property is a big time commitment. No matter how much you love what you do, make sure to take time for yourself and create a list of people you can rely on for backup. Having a network of people who can help in a pinch is important for the maintenance and safety of your property.

10. (Not) Treating your rental like a business

However you got into landlording, your rental property is a business and an income source — and you need to treat it that way. Consider setting up a Limited Liability Company (LLC) for ownership. This can help protect you personally from legal actions or claims. In addition, consider using accounting software or a spreadsheet to keep close track of your income, expenses and ultimately your return on investment. Document all of your procedures and communications with applicants and tenants, and make sure to stick to your procedures. When you’re renting a property, you will hear a lot of different stories, and some of them may be sad. There are many opportunities to help your community, but you want to make sure any action you take makes good business sense.

Successful landlords leverage skills from many different areas: customer service, marketing, accounting and home repair, among others. Reduce the risks that come with being a landlord by educating yourself and networking with other experienced landlords and related professionals. Join local or national landlord associations to keep up with changing rules and regulations, and share your experiences, so you can avoid the most common landlord mistakes.

HARASSMENT

by Cathy L. Lucrezi, Attorney at Law

“Harassment” is used so often in our vernacular, the word fails to even raise an eyebrow. Not so in fair housing law. “Discriminatory Harassment” has a specific meaning and a powerful impact.

Under fair housing laws, “discriminatory harassment” includes any abusive, foul or threatening language or behavior directed at a tenant because of that person’s protected class. [Protected classes include race, color, national origin, religion, sex, disability, familial status, as well as any protected classes created by local ordinances.]

Harassment occurs when the landlord or staff or other tenants, target a tenant with hostile conduct. The hostile conduct might be using racial epithets, making sexually suggestive proposals, yelling profanity at a person, persistently photographing the person in common areas, and any other annoying and threatening behavior.

Of course, not all annoying conduct is a fair housing violation. A person who yells profanity at his neighbor may simply be a jerk. If the person yells the profanity because he dislikes his neighbor’s religious beliefs, then it is discriminatory harassment.

You would be correct in assuming the landlord can be sued for damages if he or his staff is the source of the harassment. However, you might be surprised to learn the landlord can be held liable even if the harassment comes from other tenants.

Staff who witness or learn of harassment should investigate the complaint. If there is merit to it, a notice of noncompliance should be served to the harasser. If the harassment is repeated following expiration of the notice, termination and eviction may be appropriate.

Prevention helps avoid harassment complaints. The landlord should foster an environment that is free from discriminatory harassment or intimidation. All staff should model appropriate non-discriminatory behavior. That means, no offensive “jokes” or names, no matter how friendly the listener may be. All staff should attend fair housing training. If you would like to adopt a staff policy of “no harassment” that includes directions to staff on how to handle complaints, contact our office for a sample policy.

EVICTIONS AND FAIR HOUSING

by Cathy L. Lucrezi, Attorney at Law
A proper notice and a risk of eviction often make a tenant comply with the lease. However, that notice and risk of eviction can sometimes be perceived as a fair housing violation. How can a landlord figure out how to enforce the lease without looking like he is violating the law? Is there really such a tightrope to walk?

If a tenant is violating the lease, the landlord serves a notice. Sometimes it’s a three day notice to pay rent or move. Sometimes it’s a seven day notice to correct a problem and not do it again. Sometimes it’s a notice to vacate.

Landlords often worry that the tenant who receives such a notice will claim a violation of fair housing law. It is thus not surprising that some landlords hesitate to take any action, even though the noncompliance persists.

A landlord protects himself by being sure that his decision to serve a notice or to start an eviction is based solely on non-discriminatory reasons. The decision can never be based, even in part, on the tenant’s race, color, religion, sex, national origin, familial status, or handicap. [Don’t forget – Your local government may have added one or two to that list.]

As long as the landlord is not considering the tenant’s protected class, it is okay to evict a tenant. There must be valid, nondiscriminatory reasons for the eviction. It is okay to evict a tenant who fails to pay rent regardless of the tenant’s protected status. A landlord could cross the line, though, if he treats one group of non-payers differently from another group of non-payers. For instance, if the landlord generally serves three day notices on the 10th of each month, but serves three day notices to families with children on the 5th of each month, then the landlord should expect a fair housing complaint to be made.

Here are some other situations that can result in discrimination complaints:

A single woman is told that her partner is approved to move in with her, and then is evicted when management learns her partner is of a different race.

A married couple who lives in a one bedroom apartment is asked to vacate after management learns the wife is pregnant.

Tenants who invited guests of a particular racial, ethnic or religious group for dinner or an afternoon at the pool are asked to vacate.

A tenant with epilepsy falls at the property and has a seizure. The ensuing flurry of emergency personnel causes the landlord to issue a disturbance notice.

WHAT IS A REFUSAL?

by Cathy L. Lucrezi, Attorney at Law
The fair housing laws are very clear: It is unlawful to refuse to rent to a person because of that person’s race, color, religion, sex, national origin, familial status, or handicap. What is not so clear, perhaps, is that a refusal can occur even if the word “no” is never used.

An unlawful refusal of housing can be the basis for a fair housing complaint and can result in the landlord being liable to the applicant or tenant for a substantial sum of damages, as well as fines and attorney’s fees. Examples of an unlawful refusal of housing:

The landlord takes the application but allows it to languish on his desk, hoping the applicant will forget about it or find some other place to live. The landlord’s inaction is as good as a “no”.

Of course, delays occur for reasons totally unrelated to unlawful discrimination. The agent may go on vacation, or the agent may be waiting for the employment verification to come back. A good management office will make diligent efforts to make sure such delays are avoided. If delays do occur, good management will communicate with the applicant to assuage any of his concerns.

“This place is terrible!”

The landlord shows the home to the applicant but persistently bad-mouths it, in the hopes the person will just walk away. Showing the unit does not disguise what is really happening: The landlord does not want to rent to the person.

Of course, the landlord is obligated to tell a prospective tenant about “latent defects” – negative things that the person would not be able to learn from an inspection. However, the law is violated when the landlord goes beyond this; being so negative that the applicant begs to be shown another unit or disappears altogether.

“You’re approved, but you need a co-signer.”

The landlord is requiring a guarantor or co-signer from an applicant merely because the person is a member of a protected class. Whether the landlord is doing it intentionally or doing it because of some wrong-headed generalization about a group of people, it violates the law. The “conditional approval” is the same as a refusal.

Of course, it is absolutely ok to require a guarantor or co-signer to the lease, provided it is done for a sound business reason. Regrettably, some landlords impose such a condition on single mothers, disabled individuals, and non-citizens who are lawfully present in the U.S.A.

The solution

Develop written criteria for who will qualify for a rental. Develop a written procedure for how each application will be handled. Follow the procedures! The more standardized the procedure is, the less likely there will be one of the refusals listed above.

Be sure that your decisions about who qualifies and what conditions are imposed are based on legitimate, non-discriminatory reasons. If it can’t pass that test, you shouldn’t be doing it.

WELCOMING DISABLED TENANTS

by Cathy L. Lucrezi, Attorney at Law

 

A disabled applicant should be treated just as any other applicant.  The process of accepting an application, showing available units, doing a credit and background check, and executing a lease should be the same as you it would be for a non-disabled person.  There are a few exceptions, described later in this article.
The business office.
Make sure that your leasing office meets accessibility standards. This includes being sure there is an accessible route from the parking area to your leasing office.   This may mean adding a ramp or curb cut, or outfitting at least one restroom that is accessible.
Reasonable accommodations.
If the disabled applicant needs an accommodation in order to apply for housing, make it.  Examples include allowing a vision-impaired applicant to have his friend complete the forms, or allowing a service animal to enter the business office.  Another example would be to allow the disabled person’s guardian do the paperwork and sign the lease.

The applicant may say she wants the unit, but will need a modification or accommodation.  You can ask the applicant to put the request in writing and provide you with verification of disability.  (Hopefully, you already have a policy in place for handling this type of request.)
Question “Do’s”
Generally, a landlord should only ask a person with a disability questions that are asked of all applicants or tenants.  It’s OKAY to ask questions such as:
— Can you pay the rent?

— Do you have references regarding your tenant history?

–Who will be living in the unit?

— Do you have a criminal history?

If ours is an apartment community designated for people with disabilities, you can ask the applicant if he or she qualifies for the housing.
Question “Don’ts”
It is NOT ok to ask the following:

–Do you have a disability?

–Do you take medication?

–How severe is your disability?

–Why are you getting SSI?

–Can I see your medical records?

–Have you ever been hospitalized for mental illness?

–Have you ever been in drug or alcohol rehab?

–Are you capable of living independently?

A few more “Don’ts”.
Do not presume to know what is best for the disabled applicant.  If a person with a mobility impairment wants a unit on the second floor, do not try to talk him into a first floor unit.  You would be presuming to know better what the applicant needs, than the applicant himself!  It would be a violation of fair housing laws, no matter that you acted with good intentions.
Do not offer a particular accommodation.  Don’t suggest: “Will you need a handicapped parking space since you are in a wheelchair?”  Instead, respond positively if the individual in the wheelchair asks for a handicapped parking space.  The request for such an accommodation should come from the tenant, not you.  You can let applicants know you welcome requests for reasonable accommodations and modifications, by noting it in your application materials.

Weak Evictions Cases

A nonpayment of rent eviction or an eviction based upon a serious criminal act that occurred on the premises is, well, a piece of cake. Most property managers are familiar with the steps necessary to set up the case for the eviction, the proper notice to be given and the eviction process itself. If a resident has not paid rent, the whole process is usually cut and dry. The resident has not paid the rent, a proper notice is given, the notice expires, and the eviction is filed by your friendly attorney who has filed thousands and thousands of evictions. Well over 75 percent of the cases go through without a hitch, and eventually the resident either vacates voluntarily, or the Sheriff makes the resident vacate. This article is not about those cases. Rather, this will be about the “weak” cases, in which the manager wants the resident out, the regional manager wants the resident out, everybody in the office wants the resident out, BUT your attorney tells you that you have “weak” case.

Before we go on with this, when your attorney tells you that your case is weak, you need to trust him or her. Think about this. If you use an attorney who primarily files evictions, this is how your attorney makes money. If an eviction is not filed, the attorney makes nothing and probably spends at least 20 minutes and 5-10 emails discussing the matter with you. You see, eviction attorneys WANT to file evictions. They want to file as many good cases as they possibly can. If they don’t file a particular case, they make less money. On the other hand, your attorney does not want to lose a case for you. Some managers feel that if you lose an eviction case, you just have to start over again at a later time, and it is no big deal. Well, it can be a big deal, a really big deal. Under Florida law, the losing party, and that may be you, must pay the attorney’s fees of the winning party, and that may be the resident. While most residents do not retain an attorney, more and more do as time goes by. The reason is twofold. First, there are over 100,000 attorneys in Florida, and some are dead broke. They will take any case that walks through the door, hoping to find a reason to make some money. Secondly, since the winning party in an eviction gets an award of attorney’s fees; that desperate attorney may end up getting an award of $10,000 or more against your company! Yes. It is true. We are aware of cases in which fee awards approach $20,000, all over a simple eviction action in which the manager LOST the case. An honest attorney looking out for your best interests will tell you when your case is weak and why. You should trust your attorney if he or she has been practicing in this area of the law for a long time and has plenty of experience. Let’s look at some examples of cases that appear strong to you, but may be weak. Finally, this article will not explain how to actually make these eviction cases stronger, as we have written plenty of articles in depth on each scenario, but this article is meant to point out why some cases are weak and why more has to be done in order to evict a person for an action or inaction if it is indeed even possible.

The Unauthorized Occupant

Simple enough. You see the unauthorized occupant, you speak with the resident, you give a 7-Day Notice to Cure, as you still see the unauthorized resident’s car, and you figure you can file an eviction. Not so fast. What is your proof? Well, you see the unauthorized occupant’s car each night. That is all nice, but is this enough to win the case in court? The resident will claim that the person is a visitor, that this person frequently visits at night and does not live there. This creates quite a mountain for you to overcome. You need to PROVE to a judge who has no idea what is going on at the property that the person is actually LIVING there. You say you have three residents who tell you they see the guy going in and out all the time. Will they come to court? They say they will, but do you know how many times a resident who has been complaining all the time does not show up in court, or if the neighbor is compelled to show up under a subpoena, how the story may change? With no testimony and solid proof, you will lose.

Resident Smoking Marijuana

We weren’t born yesterday, and most of us know exactly what marijuana smells like. Currently it is illegal to use marijuana, so if a resident is using marijuana, that resident is committing a crime. The resident in a second floor apartment tells you she constantly smells marijuana from the resident below, smoking inside the unit or on the lanai. You go over to the resident’s apartment to speak with him, and a cloud of marijuana smoke comes out and hits you in the face. Can you evict based on this proof? No. You would need to have the resident arrested, the marijuana confiscated and field tested, and you would need solid proof a crime was committed on the premises. Easier said than done, especially when the police often do nothing when you call them. To be quite frank, police have bigger fish to fry than your resident who is smoking marijuana on the lanai or inside the unit. A weak case it is.

Excessive, Accumulated Late Fees

Your resident had been paying the rent late each month, and over the past 6 months the late fees have been building and building. You take no action, as you are happy just to get the rent. Your regional manager clamps down on this and tells you that if a resident owes anything which is not paid upon demand, you are to file an eviction. You send the case over to the attorney, based upon a notice demanding $800 in late fees accumulated over 6 months. Can you win this eviction? It is really risky and hard. Your failure to insist on rent with the late fees or your failure to return the rent when it did not include the late fees created a potential waiver defense, and most judges will not want to evict someone based on the fact that it was YOU who failed to enforce your late fee policy. Many judges hate late fees.

The Unauthorized Pet that has Been There Forever

You have knowledge that your resident has an unauthorized pet in the apartment, but you don’t take any action. The pet is quiet, the pet is cute, and you have inspected the unit a few times and did not see any pet related damage. On top of that, your maintenance tech’s kid has taken care of the pet on a couple occasions when the resident was on vacation. You go into the unit now and see pet damage. Now the cute little pet has become incontinent, or the resident is leaving it unattended for extended periods of time. Maybe it has taken up barking loudly. You immediately get angry and want to give a 7- Day Notice to Cure for the unauthorized pet. But wait! The legal principle of waiver kicks in. Your failing to do something the moment you discovered the pet and your subsequent acceptance of rent month after month will cause your case to be almost impossible to win.

Resident vs. Resident Wars

We have all seen cases in which on-site residents in adjoining or nearby apartments engage in a war. One resident complains about noise, yelling, harassment, name calling: the list goes on and on. The other resident frequently has the same complaints. Now if residents get into a squabble, and there is an arrest at the property, the case actually becomes easier to set up for an eviction, but it does not usually rise to this level. It is an ongoing, low-grade war and dispute, and you are the recipient of all the complaints. You recognize that to comply with fair housing laws, you should not take sides, even though you may suspect who the real instigator is. At the end of the day, you simply do not have enough to file an eviction. These are extremely frustrating cases with which to deal, but in the absence of corroborating evidence from some third party, such as a law enforcement officer or staff member, a case against either resident will be weak.

Noise From an Adjoining Apartment

The resident below claims that the resident above is making banging noises on the floor or dropping things. Maybe the resident has a child who is constantly dropping toys on the bare wooden floor or running around. Is it noisy and annoying? Sure, but can you evict the upstairs resident for this? Very doubtful. Part of the problem is that you have no independent proof that there really is noise. You can have 10 reports written up by the downstairs neighbor, but you are not allowed to show these reports in court. Then for the final blow, you find out that the upstairs neighbor is saying that the downstairs neighbor is banging on the ceiling. Without proof, you have nothing. Absolutely nothing. If you try to evict, a judge may even deny the eviction based upon inadequate soundproofing.

The Cluttered Apartment

Some people live in an embarrassing fashion. A first glance will show everything is scattered about: clothes, papers, books, newspapers, magazines and junk. You can’t even see the floor or recognize the room you are in. Can you evict for this? If it is not a true health or fire hazard, the answer is most likely no. What you feel is a fire or health hazard may simply be a messy and cluttered apartment. Without solid proof from a professional who will come to court with you to prove to the judge that some health or building code is being violated, you will lose. People have a right to live how they want. Now, if it smells of rotting food, there are insects, vermin or feces all over, that is a different story, but a cluttered apartment may not reach that level. You often will have to put up with it.

Loitering and Excessive Guests

What is loitering? Is having 5 people sitting on the steps loitering? Is a gathering of people in the parking areas hanging out and talking loitering? You may feel it is, but unless the police agree and take action accordingly, you have nothing. Now if those 5 people on the steps are unreasonably loud or preventing other residents from using the steps for ingress or egress, this is a different story, but just “sitting there” will probably not support an eviction. What constitutes excessive guests? Is a gathering of 20 people in a small apartment excessive? This is not up to you to determine. If there is noise, excessive traffic in and out of the unit, indications of drug dealing, prostitution or other provable problems, you may be able to take some action. However, just because people do things as a group or congregate and “hang’ out, these actions may not support an eviction, and your response in dealing with this activity could result in a fair housing lawsuit or complaint.

The Odd, Annoying Resident

Sometimes you have an “odd” resident. Everyone does. The one that wanders around the apartment community partially clothed, two different shoes, smells funny, mumbling, watching the mail carrier sort the mail for delivery, saying weird things to other residents, coming into the office frequently or sitting in the children’s play area staring at the children. You may want to evict this person for “harassing other residents”, but is this resident really harassing people to the point when the actions will constitute lease violations worthy of an eviction? Very doubtful, and on top of this, the resident may have a mental problem which would qualify that person to be considered disabled under the law. Trying to file an eviction on the odd resident is extremely risky, and all other avenues need to be exhausted. You may just have to put up with that resident.

Conclusion

Don’t hesitate to speak with your attorney even if you have a weak case. Often there are non-eviction means to get compliance or to get a resident to vacate. The key is to understand when you do have a weak case, continue to gather evidence, and follow the advice of your attorney. Many times a weak case becomes a strong case. You never can predict what will occur.

6 Tips for Rebranding Your Apartment Community

 

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So you acquired a new building, but it needs a little bit of work. Perhaps the features are dated, the name is passé, or the reputation has taken a hit. One way to start fresh is to rebrand your building, revitalizing your apartment community inside and out.

Here are some steps you can take as part of a systematic approach to turning your complex around.

Create a story around your product

Your brand is what sets you apart from other communities. It puts a face to your business and helps renters like and trust you. Create a story around your brand to communicate how you add value: What kind of lifestyle does your property offer? How does that reflect the demographic it will attract? How will your community’s offerings fulfill that lifestyle? Communicate your brand consistently across all of your channels, including your website, signage, collateral and messaging.

Highlight what sets your property apart

Every property is unique, and that individuality should come through in your brand messaging. What do you offer renters that other properties in your tier do not? Whether it’s your location, value, level of service or high-end amenities, be clear about what your community can give the apartment shopper that they can’t find anywhere else.

Prioritize high-impact renovations

Property updates can make an outdated community more relevant and appealing to renters — and allow you to increase your starting rent. Research the high-value projects to determine what will make the most impact when modernizing your community; consider an exterior facelift to improve curb appeal, or update bathrooms and kitchens with modern countertops, fixtures and appliances.

Train your staff

Your leasing and front office staff should all be able to speak to the brand and give residents and prospective renters the experience that was advertised. Inconsistent execution of your brand and poor customer service can result in negative feedback and higher turnover.

Utilize social media to broadcast your message

A website is only the first step in building your brand. Apartment hunters are all over the Web; find out what sites they’re using, and establish an online presence so you can interact with these potential renters. Leverage social media to execute your brand: Facebook, Twitter, and Yelp are where residents or prospective renters go to read reviews, ask questions, look for photos or even air their grievances. Having a presence on the top-trafficked social media sites gives you insight into what’s being said about your community, helps you control the messaging, and allows you to provide an appropriate response.

Create a rebranding business plan

Before you get your hands dirty, determine your goals, timeline, marketing strategy and budget. Rebranding involves a lot of moving parts, and having a plan will help you establish a process, stay within budget and be on top of the game.

Dangers and Difficulties when Evicting Service members

by Brian P. Wolk, Attorney at Law
 

Turn on the television, or open up a newspaper, and you are virtually guaranteed to see many areas around the world filled with fighting and civil unrest. In addition, there is usually some type of natural catastrophe in which major damage has occurred. The brave men and women of the United States Armed Forces who protect our country are often deployed in large numbers in many countries all around the globe, and for many different reasons. For instance, the United States could be involved in a conflict in a far-off region. The event causing the deployment can also be one that is primarily a humanitarian effort, such as a typhoon in Asia, where in the aftermath our servicemembers hand out much needed essentials and deliver other aid. The additional presence of servicemembers who are deployed has also created uncertainty for property managers who have residents on active military duty and family members of servicemembers. The property manager in many cases has no idea how to go about evicting such a resident or the servicemember’s family members. Making matters worse, property managers rarely understand how much potential liability there is when improperly evicting a servicemember.

History of the Service members’ Civil Relief Act

The Servicemembers’ Civil Relief Act, also known as “SCRA”, is a federal law which gives service members many protections with regard to civil lawsuits. Those protections enable service members and the service member’s family members, or dependents in some cases, to delay or suspend civil liabilities. The Act was signed into law in 2003. However, an earlier version of the law was enacted during World War I and re-enacted in 1940 during World War II, which law was previously was known as The Soldiers’ and Sailors’ Civil Relief Act. These laws serve the same general purpose. The acting Congress and President at the time intended for those who are serving in the armed forces to not be distracted with respect to their main focus, which is to protect the United States, and did not want the servicemembers being worried about civil lawsuits filed against them. There is also a well grounded assumption that servicemembers are at not on a level playing field in terms of defending themselves from a civil lawsuit while being located a great distance away from the United States. Judges view this law very seriously, and military residents are likely to prevail in court unless a judge is absolutely sure that the protections do not apply. Property managers should not expect to receive the “benefit of the doubt” in a close case. The United States Supreme Court in a 1948 opinion made clear that the law should be viewed “with an eye friendly to those who dropped their affairs to answer their country’s call”.

Eviction Protection under the SCRA

The property manager intending to evict a resident on active duty in the military or a resident in the process of reporting for active duty often must deal with two areas that the Servicemembers’ Civil Relief Act covers, which is protection against the entry of default judgments, and a stay of proceedings when the servicemember has notice of the proceeding. “SCRA” covers residential evictions of servicemembers or their dependents during the period of military service, unless the monthly rent is unusually high. “Dependents” are defined under the Act as the spouse of the servicemember, a child of the servicemember, or an individual for whom the servicemember provided more than one-half of the individual’s support for 180 days immediately preceding an application for relief under “SCRA. As you can see, the definition of a dependent is much broader than just an immediate family member.

 

Entry of a Default against a Servicemember

When evicting most residents, if the resident does not answer the complaint after 5 business days, the property manager is entitled to a default which is entered by the clerk of the court. The judge then will enter the final judgment of eviction. Not so in the eviction of a servicemember or dependent of a servicemember: the process to obtain a default is drawn out and complicated. The judge, not the clerk of the court, must enter the default. To obtain the default, the property manager must first provide the judge with an affidavit regarding the resident’s military status. If the verification is not clear as to military status, the judge may enter a default, but also require the landlord to post a bond in a certain amount to protect the resident from damage. If the judgment is set aside at a later date because it turns out that one of the residents was a servicemember, the bond may be used to satisfy the servicemember’s losses, and the bond will not be dissolved until the time to file all state and federal law appeals has been exhausted. If the military verification shows that the resident is on active duty in the military, then the judge will order that an attorney be appointed to represent the servicemember, if no appearance is made on behalf of the servicemember. Many counties require certain military verification reports to be run when submitting default paperwork, and it is vital that property managers obtain social security numbers and birth dates of all residents who sign the lease, as that information is needed in order to generate those reports.

Military Ad Litem Attorney

This attorney that is appointed by the judge to represent the servicemember is referred to as the military ad litem attorney. Substantial additional charges and fees are involved in this process, and courts will often expect the property owner to pay, since this area of the law is unclear as to who has the burden to pay for the ad litem attorney. The military ad litem attorney vigorously tries to find the servicemember and will review the eviction filing to see if there are any valid defenses that the servicemember may have. If the military ad litem attorney submits a report to the court indicating the resident does not have any valid legal defenses, the court then may enter a default and then give possession of the unit back to the property manager. A property manager should never file a false military verification unless the property manager is seeking to do jail time. The law imposes heavy punishment on those who knowingly file false military verification affidavits, as violators can be imprisoned for up to one year, in addition to being fined.

The Judge may Delay the Eviction

The Act authorizes the judge to grant a stay on the eviction for a period of at least 90 days, no matter how feeble the servicemember’s legal defenses are, as long as the servicemember demonstrates to the judge that military service is adversely affecting the servicemember’s ability to timely pay the rent. The judge can stay the eviction action for a lesser period of time, but often judges will grant as much time as the servicemember needs. The judge also has authority to change terms of the lease, and has discretion to increase the stay to a period of longer than ninety days if the facts support such a ruling.

Servicemember Stipulations

A property manager should always remember that the SCRA allows the servicemember to waive protections afforded under the act. Thus, entering into a stipulation with the military resident under eviction is usually a good idea. However, the property manager’s eviction attorney should draft the waiver wording listed on the stipulation so that it is legally enforceable. If the servicemember fails to abide by the properly worded stipulation, an eviction judgment based on the stipulation noncompliance can usually be obtained without the necessity of an attorney ad litem appointment.

Final Words of Advice

Property managers should attempt to evict residents who are on active duty in the military only as a last resort. The reason is simple: the eviction of a servicemember can take many months. These cases are usually significantly more expensive, as the property manager often must end up paying for the resident’s military ad litem attorney. Therefore, before trying to evict the military resident, the property manager should work overtime to see if an agreement to vacate can be signed. In many cases it is worthwhile for the property manager to agree to waive collection rights, if this will give the servicemember or the servicemember’s dependent an incentive to turn in keys and deliver possession back to the property manager without the need for an eviction.

Disclosure of All Facts Prior to Eviction

by Harry Heist, Attorney at Law
 

Sometimes after we have filed an eviction, we find out that a client “withheld” certain information from us, and that act of withholding ends up having a serious impact on the outcome of the eviction case. Of course, most clients claim that it was unintentional or an accident, and that they simply forgot to tell us some crucial little factoid about the situation. Withholding information will not make your eviction more successful no matter how good your attorney is. In fact, it could cause you to not only lose a case, but cause you to become embroiled in a major contested eviction or worse. Never forget that when you file an eviction, the resident can counterclaim, and now you are getting sued.

The Intentional Failure to Disclose

Occasionally a property manager will know something that could be damaging to an eviction action and will choose not to disclose the information, fearing that the attorney will not take the case. This is very dishonest and unethical. You could end up putting your attorney into a position where he or she is forced to ask the court for permission to withdraw from the case. You would then be required to hire another attorney to continue the case for you, or maybe have to drop the case altogether. Dropping the eviction case, or “dismissing” the case (in legal terminology) is really no huge deal, unless the resident has retained an attorney. If the resident has an attorney, you could end up being liable for the resident’s attorney’s fees, which could be substantial. Can you imagine an eviction costing up to $20,000? We can show you cases in which property management companies and owners had judgments against them for an amount this high, simply because they lost the eviction action. Intentionally withholding information is dead wrong, and when we find out that a client does this, we usually will refuse to work for that client ever again. It is not fair to yourself, the property owner, your attorney or anyone else to be dishonest.

Just File the Eviction, I KNOW They Will Move!

We have heard this many times from clients, and often the client is 100% correct. Sometimes all it takes is having the eviction filed with the courts and served on a person for the resident to pack up and move. Let’s face it, most residents don’t put up a big fight. Usually they have nothing much to fight about, so they just buy a little time and move. Does this strategy always work? No, so you cannot depend upon the resident just moving. Sometimes, a mild-mannered resident can surprise you with a real bulldog attorney who wants to take the case to the proverbial Supreme Court.

The Unintentional Failure to Disclose

While no less dangerous, we understand that our clients sometimes do not intentionally withhold important information. It was either by accident or lack of knowledge. The main problem is that our client did not know the information was relevant or could have any impact on the case. You would hate to have to answer a 100-item questionnaire before each case, so you need to know what to look for, and what we look for. This article will discuss a number of issues that can cause a case to be seriously jeopardized and items and facts that need to be disclosed to the attorney BEFORE the case is filed. By disclosing, you are being honest and can give the attorney the ability to possibly help you get possession of a unit without even filing an eviction at all. There are all kinds of strategies that can be used in the resident removal process. Eviction is only one option. Sometimes, we are able to get a resident to leave without having to use the court system, and this is always preferable.

You Accepted Rent after the 3-Day Notice or 7-Day Notice Expired

If you accept rent after the expiration of the 3-day notice or 7-day notice, and we don’t know this, the allegations in the eviction complaint will be inaccurate. A defective 3-day notice is an excellent way to lose an eviction action, and similarly, accepting rent after a 7-day notice the basis of the eviction action will likely result in the eviction being denied.

You Served Another Notice after the 3-Day Notice

If you serve any payment demand notices after the 3-day notice, the last notice you serve can void out the prior 3-day notice. When we file the eviction, we need the most recent 3-day notice, not one from last month when you just served 20 more 3-day notices on the property yesterday. We receive a case to file on the resident, and the day before, the assistant manager served everyone, including the resident now under eviction, with the current month’s 3-day notice.

You Gave the Resident a Verbal Extension of Time

The 3-day notice has expired, and the resident is begging you for more time. You give him a few more days, but the few more days ends up being a week, and in the meantime, the resident has had conversations with other staff members in your office about more extensions. Your kindhearted extension of a few days becomes what the resident claims was a two-week extension, and the entire case becomes a, “he said, she said” mess.

The Resident has Made Habitability Complaints

Sometimes a resident does not pay rent because of habitability problems in the residence. The habitability issues will often come out in court; trust us on this. Will the judge have sympathy for the resident? Quite possibly. We don’t want to hear about the resident’s 3- month old mold issue in court. If the resident has had problems in the unit, we need to know.

You Received a Rent Withholding Letter

By law, if a resident serves you with a written notice of a serious habitability issue, and you do not rectify this within 7 days, the resident may be able to break the lease or withhold rent. In some cases, the rent withholding letter is a complete defense to the eviction. When requesting an eviction, it is imperative that your attorney be notified of any rent withholding notice.

You were Contacted by an Attorney

Attorneys usually write letter to owners or property managers, and sometimes they even will call you. You may even speak with the attorney, giving that attorney information that could be seriously damaging. It could be misconstrued by the attorney, or twisted and used against you later. Your attorney needs to know if you had any contact with an attorney, when, why, the nature of the communication, and your attorney will want to examine any written correspondence you may have received from the resident’s attorney. Don’t talk to the resident’s attorney, even if that attorney is very nice to you on the phone.

You or the Prior Company May Have Filed an Eviction on the Resident Previously

We have clients come to us sending over what looks like a basic eviction, only to find out that a prior attorney filed an eviction on the resident 3 months ago and possibly lost or dropped the case. Not only can we not work magic, but sometimes the older eviction is still open in the court system, and maybe there can even be money in the court registry in the old eviction case. It is possible that your owner owes attorney’s fees to the attorney who represented the resident in the last eviction. While we may be good at what we do, those problem are hard to overcome.

You Had a Drop Box Theft

In the past two years, many of our clients had thefts of checks and money orders from their drop box. Many now don’t even have a drop box, as it is so dangerous to use this system. We have clients send over cases for nonpayment of rent without telling us that the case involved a resident who had or claims to have had the rent stolen from the drop box. Judges are not too sympathetic to property managers who have drop box issues.

Resident is in Bankruptcy

Some property managers do not understand that if a resident is an active bankruptcy case, not only can you not file an eviction against that resident without bankruptcy court approval, you cannot even serve a 3-day notice on that resident. If we are not told this, we have no idea the resident is in bankruptcy; we file the eviction, and you could end up being sanctioned by the federal bankruptcy court for violating federal bankruptcy law. This will cost you money and is illegal.

Resident is in the Military

Just because a resident is in the military does not mean that the resident does not have to pay rent. BUT, the court must be advised by way of an affidavit if you know the resident is in the military. If you remotely think the resident is in the military, you must find out, or you can get into serious trouble. An eviction against a person in the military is not the same as the typical eviction; additional expenses will often be incurred, and the eviction can take much longer than normal. When seeking a default against the resident for not responding to the lawsuit, not disclosing to the court that the resident is active military is a federal crime.

You Signed a Rent Assistance/Social Services Form

There are many social services organizations, some public and some private, that provide rent assistance to people in need. In order to get that assistance, the owner or property manager often must sign a form provided by organization providing rent assistance. These forms will often have some fine print under which the owner or property manager is agreeing to hold off on an eviction for a period of time. If you agree to hold off and wait for the money that may or may not come, you are stuck with this. We have filed cases in which the resident defended on the basis that the landlord signed such a form, only to have the judge deny the eviction. You must be careful never to sign this type of document unless you know exactly what it is, understand the ramifications, and most importantly, keep a copy of it to show your attorney.

The Resident has Died

What? Is this possible? Yes. We have had property managers not tell us before and more often during an eviction that the last remaining resident in the unit has died. The manager is thinking that maybe by telling us, the eviction may have to stop, or things will get complicated. The manager is right. Evict a dead person, and see the trouble you will get in when the heirs find out you tossed all their dead relative’s belongings onto the street.

The Manager Who Prepared and Served the 3-Day Notice no Longer Works at the Property

If a resident tries to claim that the 3-day notice was not received according to the certificate of service section completed “Mary”, or the resident tries to claim the rent was paid to “Mary” in the office, and “Mary” no longer works for you and left on bad terms, the lack of “Mary” in court could be the end of the eviction case. If a staff member involved in any way with rent collection or notice serving on the account in question is no longer is working at the property, we need to know.

You are no longer Working for the Owner after the Eviction

You are either done working for an owner because of some problem that you have with that owner, or because of some problem the owner has with you. You have no intention of working for the owner after the eviction is over. Will we get paid for that eviction? Doubtful. Your owner won’t want to pay anyone you had any dealings with. Moreover, if your intent is to terminate management as soon as the eviction action is filed, or if the owner has terminated your services prior to (or during) the eviction action, we need to know.

Your Owner is Broke

Many property owners are completely broke. They could be in foreclosure, near foreclosure or on the verge of bankruptcy. You know your owner far better than we do. If we file the eviction for you, the chances of us getting paid are slim to none. It is not fair or right to do this to any vendor. On top of this, often the resident will refuse to pay rent when he or she knows the owner is not making the mortgage payments.

Failure to Register your Fictitious Name

You took over an apartment community a few months ago and no one in your company bothered to register the fictitious name with the state. Most of the time, no one in the company even knows what this means. If you look at www.sunbiz.org, not only are you under new ownership, but the new name you have for the apartment community is not even registered. An eviction defense? Absolutely. As soon as you take over a property or change the name, it is crucial to properly register your fictitious name, as it is actually a misdemeanor to file an eviction, and this can result in your case being delayed or dismissed.

You have been Negotiating with the Resident

Your resident had flood damage that was not the resident’s fault. You received authorization from the owner to reduce the rent by $200 for one month, but what did the resident want? MORE. So now you are going back and forth, and the resident then decides to take it upon himself to deduct the $350 from the rent money and you accept the partial payment with the deduction. Does this mean you have a deal? Are you stuck with this? Some judges feel this way. We need to know this before we file an eviction, not after. Any deals on rent reductions or reimbursements are extremely important, and they become promises and contract modifications in some cases.

The Resident is on Section 8

We can evict Section 8 residents, but there are some special procedures that must be followed, and in addition, many Section 8 evictions get contested. If a resident loses Section 8 eligibility due to an eviction, it is quite a big deal to that resident, as Section 8 assistance is worth a lot of money over time. Section 8 residents under eviction routinely go to their local legal aid office, and often the Section 8 employees do not properly follow the rules when they cut off Section 8 residents. Often we cannot tell by looking at the lease that you are accepting Section 8 on a resident, and this needs to be disclosed.

Your Resident Subleased

Many residents will sublease or get a permanent “roommate” and not tell you. As long as you are receiving the rent, you sometimes will know and just ignore this. When the rent stops flowing in, we have to file against the resident who is long gone. This can cause an extremely complicated and failed eviction, especially if it turns out that you have accepted rent from that roommate or sublessee. Let us know if there are any unauthorized people living in the unit before we file, and most importantly, let us know if you ever accepted rent from anyone other than the named residents.

The Resident was or is Receiving Rent Credits for Work or Repairs

Occasionally, you allow the resident to receive rent credits for work done on the side, or repairs or work done in the residence, despite our strong recommendation against any such exchange. Perhaps the resident is a former courtesy officer who was receiving reduced or free rent, and you have decided to terminate that arrangement. Disagreements about the level of compensation or current rent amount often arise, and this is a great way to lose an eviction; we need to know about any such arrangement.