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.
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.