Category Archives: eviction

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.

Properly Executing the Writ

by Harry Anthony Heist, Attorney at Law
The proper execution of the Writ of Possession is crucial to a successful and completed eviction action. The key word here is completed. Many landlords and property managers make serious mistakes at the end of the eviction action, increasing the liability to the landlord and potentially defeating the whole purpose of the eviction action. Most evictions result in the tenant vacating the premises within a week or two after the eviction action is filed with the court, and many landlords have never experienced the execution of the Writ of Possession.

The Mechanics

Issuance of the Writ: Once a final judgment of eviction is obtained, the landlord must decide if a Writ of Possession, hereinafter Writ, is necessary. If the landlord decides that a Writ is indeed necessary, the attorney submits the Writ to the Clerk of Court along with a check to the Sheriff’s Department, usually in the amount of $70.00. The Clerk of Court then confirms that a final judgment has indeed been signed by the Judge and “issues” the Writ. The Writ then is taken to the Sheriff’s Department where it is processed by staff of the Sheriff’s Department.

Service of the Writ: Once processed, the Writ is assigned to a Deputy for service upon the tenant. The Deputy then takes the Writ and serves it upon the tenant, or in the absence of the tenant, tapes it to the tenant’s door. The Writ informs the tenant that he must vacate the premises within 24 hours.

Notification of the landlord: The landlord is then called by the Deputy who served the Writ, and a date and time is set by the Deputy, at which time the Deputy will come and execute the Writ.

The Problem

The purpose of the Deputy’s call to the landlord is really twofold. First, it is to inform the landlord that the Writ has been served and to schedule the time when the Deputy will meet the landlord at the property to give the landlord actual possession. Unfortunately, there is another part of the Deputy’s conversation with the landlord that causes a problem, and this is the second part of the call. The Deputy, once the date and time for the meeting is set up, will ask the landlord if he or she “needs” the Deputy to execute the Writ. If the landlord says “no,” the Deputy will return the Writ to the clerk as “unexecuted”, meaning “incomplete”.

Why does the Deputy ask the landlord if the Writ is wanted?

The Deputy has many Writs to serve on any given day. Often the Deputy’s schedule will get backed up, as some Writs require more time to serve than others. Sometimes a landlord is late to meet the Deputy, and the Deputy will wait a small period of time, causing a ripple effect with the schedule. Occasionally the tenant must be physically removed from the premises, resulting in further delay. In some instances, serious disputes or altercations occur, and the Deputy must remain on the premises until the tenant is finally removed from the premises and no longer poses a danger to the landlord, the landlord’s workers or the Deputy. The Deputy wants nothing more than to have the landlord tell him that the Writ is not needed. It is completely understandable; the Deputy is just trying to get the Writs served for the day. For each Writ that the Deputy can cancel or return unexecuted, this will free up more time for the Deputy to get to the next Writ that needs to be executed.

What does the Deputy say?

The Deputy will ask the landlord if the tenant is still in the rental unit. Often the landlord is not sure if the tenant is still in possession, and the Deputy gives the landlord his cell phone number to call. The landlord then goes and checks the property. If the property is empty or appears empty to the landlord, the landlord will notify the Deputy, and the Deputy will then ask the landlord if the Writ execution is “needed”. Often the landlord will say “no”, thinking that if the tenant is not there anymore, then it must be unnecessary to meet the Deputy.

The Consequences of telling the Deputy “NO”

If the Deputy is told by the landlord that the Writ is not needed, the Deputy returns the Writ to the Clerk’s Office as unexecuted, and it is docketed as such. The tenant now officially has NOT been evicted. Yes, an eviction was filed on the tenant, BUT the eviction was never completed. The tenant has NOT been evicted from the property, even though he may in fact have vacated the premises and will never be seen again.

The tenant may return: If the tenant were to return, he could simply move right back into the unit, and the landlord would need to file additional paperwork with the court seeking a new writ of possession, or possibly even be forced into filing a brand new eviction, starting all over again from scratch. The returning tenant would not be considered a trespasser, and the Deputy will do nothing to remove the tenant without further order from a Judge.

The tenant may return looking for personal property: If the tenant comes back to the premises and the landlord has disposed of her personal property, she could hold the landlord civilly and possibly criminally liable for the loss of the property. The tenant could say just about anything as to what was taken and its alleged value, and it would often be difficult to counter these allegations. When the landlord fully executes the Writ and subsequently removes the personal property to the property line, the landlord’s liability to the tenant for her personal property is negated. When the writ is not executed, the potential liability for improper personal property disposition can be very high.

The tenant may use the common areas of the property : The landlord may observe a former tenant using the community pool, exercise room or laundry room. A Deputy may be more reluctant to trespass the “former” tenant if the eviction was never completed.

You have wasted $70.00 A Writ costs $70.00 and was paid for by your attorney. You will be billed by your attorney for that Writ. By canceling the Writ, you increased your liability, failed to formally complete the eviction, increased the chance of a big problem and wasted $70.00.

When the Deputy calls, what should you say?

When the Deputy calls you to set up the Writ execution time and day, if you are asked if the tenant is still there or if you still need the Writ, simply say “YES”. Never quit short of the finish line. It is a sure way to lose the race.

Dealing With The Chronic Late Payer

by Harry Anthony Heist, Attorney at Law
It is inevitable that you will have a chronic late payer. Every excuse in the book is given by the tenant for the tardy payment, but the payment always comes, sometimes with the late fees, sometimes without. You may inherit a later payer from a self-managed property or a prior management company. Is a tenant always allowed to pay late? Can you evict a late payer? Is there any way to tell a tenant to shape up or ship out, or will you be destined to always accept late payments?

Is a tenant allowed to pay late?

The short answer is “yes”. There is nothing in Florida law that allows you to evict tenants because they pay late. You can evict a tenant if she does not pay at all, but paying late is not prohibited. Regardless of what your lease may provide, if a tenant wishes to pay late, she may. There is a built in grace period under Florida law of three days, not including Saturdays, Sundays or legal holidays. If a tenant fails to pay the rent according to the due date of your lease, you must serve the tenant with a Three Day Notice which gives the tenant the opportunity to pay you within that period of three days. This is in essence a “grace period”. Without serving the tenant that Three Day Notice, there is nothing you can do to terminate the tenancy for nonpayment of rent. No provision in your lease can override the fact that a tenant is entitled by law to receive a Three Day Notice from you, and is allowed by law to pay you the rent if the notice has not yet expired.

We want to get the chronic late payer out!

My usual response to this request is to tell the landlord to be glad to have a tenant who pays, albeit somewhat late. Times are tough right now, and anything a landlord can do to keep a tenant is advisable. However, there will be times when the landlord does not want the uncertainty of getting the rent late, or is tired of having to serve a Three Day Notice on the tenant every single month, and wants the tenant out. If the tenant pays the rent within the Three Day Notice timeframe, no matter how angry or frustrated the landlord is, the tenant can stay and pay as long as the notice has not expired. The landlord’s only recourse is to non-renew the tenant at the end of the lease, or if the lease is currently month to month, non-renew the month to month tenancy.

The tenant does not pay within the Three Day Notice period

This is a different story. If the tenant does not pay within the Three Day Notice time frame, Florida law allows the landlord to terminate the tenancy. This sounds easy enough. The tenant is given a Three Day Notice and fails to pay within the time frame allotted. The landlord then files an eviction, and the tenant is evicted from the premises. It would seem perfectly legal. The tenant is chronically late, the landlord has had it, the tenant does not pay and therefore is evicted. If the tenant is in “new territory” by finally failing to pay within the three-day notice period, the landlord will have a strong case. However, it is often not that simple. The fact that the tenant has paid rent late so many times actually put the tenant in better standing in court, if the landlord has accepted rent after the expiration date of prior Three Day Notices. The landlord could also have problems in court if the Three Day Notice that finally “snares the tenant” is delivered earlier in the month than normal.

The tenant beats an eviction because he has always paid late?

While some judges are extremely strict and will evict a tenant if the tenant fails to pay within the Three Day Notice period no matter what the tenant’s excuse may be or the tenant’s past payment history, be it prompt or tardy, if a tenant can prove to a judge that he has been paying the rent late, after the expiration of the Three Day Notice, and the landlord has been accepting the rent late, the tenant may be able to prevail in court. This seems to go against logic. A tenant who pays the rent late is certainly not a good tenant. That tenant has blatantly violated the lease terms and caused extra work and worry for the landlord. The issue here is waiver. The landlord, by accepting the rent late time and time again has potentially waived his rights to enforce the terms of the lease. By his own actions, the landlord has modified the terms of the lease.

What is waiver?

If you know that a tenant has a pet in violation of your no pet policy, but you do absolutely nothing about it for months, you will have possibly “waived” your rights. The same would apply if there were unauthorized occupants in the unit and the landlord did nothing. Any noncompliance that the landlord ignores or “tolerates” for some time can result in the landlord waiving his rights. The exact same waiver can occur with late rent payment. The landlord thinks his case is better because the tenant looks “bad” in court, but actually it will be the landlord who will be at a disadvantage in court.

Can “waiver” be overcome?

If the tenant has been chronically late, does this mean you can never evict or must tolerate this late payment forever? Probably not, but you must notify the tenant that late payments, although accepted in the past, will not be tolerated in the future, and the tenant can be subject to eviction if the payments are not made within the Three Day Notice time period. Essentially it is a “shape up or ship out” type of notification. We recommend this type of notification is done in writing, by regular mail and certified mail, and at least 30 days before the next monthly rent payment is due.

Sample Wording
LATE RENT PAYMENTPOLICY, WARNING AND NOTIFICATION
DATE ________________

TO __________________________
ADDRESS ____________________ Dear Resident:

According to our records, you have not been paying your rent according to the due date which is ________________ (insert date).

While we may have accepted these late payments in the past, this letter shall serve as notification that in the event you do not pay according to the stated due date on your lease, you may be subject to receiving a Statutory Three Day Notice. If the rent is not paid within that notice period, we may opt to refuse your late rent and file for eviction ANY time thereafter. In the event we file an eviction, we may elect not to stop the eviction, or if we decide to do so, you will incur additional attorney’s fees, late fees and costs.

It is imperative that you pay your rent according to the lease terms from this point on.

Please feel free to contact us should you have any questions.

Very truly yours _______________________

Name of apartment community, management company etc.

Will this “shape up or ship out” letter work?

There is a good chance that this type of letter can overcome a waiver defense by a tenant. There is no solid guarantee, but it is better than nothing. Remember that in order for the tenant to raise a defense of waiver, the tenant first must know that he has this defense, and in most cases must place the rent into the court registry. This minimizes the risk you have, but if you are managing property for others, you will often be inheriting tenants with inconsistent and late rent payments.

Tenant Delay Tactic While In Eviction Court

A Motion to Stay a Writ of Possession is a document that a tenant files with the court which has the result of “staying” or “stopping” an eviction action after a final judgment for the landlord has already been entered. The Motion to Stay a Writ of Possession is one of the less commonly used legal techniques by tenants to stall or stop an eviction action, but it does occur enough to warrant a better understanding of the process by a landlord. It is probably the least understood and more baffling Motions, so we will start with a brief overview of the eviction process and see where the Motion fits in.

The Eviction Process in a Nutshell

For the purposes of this article, we will explain the eviction process in its most simplest of forms and use the Uncontested Residential Eviction Action as our example. In an uncontested eviction, the tenant is served with the eviction summons and complaint either by the sheriff or a process server. The tenant has 5 business days after being served to “fight” the case by filing an answer with the court. In an uncontested case, the tenant does not file anything with the court, and the clerk of court enters a “default” against the tenant. The file then goes to the judge who after a cursory review of the file will sign the “Final Judgment”. The Final Judgment states that the eviction is granted in favor of the landlord, and the Final Judgment orders the clerk of court to “issue” a Writ of Possession, which is a document commanding the sheriff of the county to place the landlord in possession of the premises. NOTE: For an in-depth article on the Writ of Possession click here. The sheriff then takes the Writ of Possession, serves it on the person or the door of the premises if the tenant is not home and on the Writ of Possession it states the date and time that the sheriff will be back on the premises to remove the tenant, this usually being 24 to 48 hours from the time the Writ of Possession is served. The removal of the tenant is called the execution of the Writ of Possession. Theoretically, and in most cases, the sheriff comes back on the stated date and time, and the tenant is removed from the premises. The catch is that the tenant is able to file a motion with the court to derail this entire process at any time after the Final Judgment is signed by the judge and before the sheriff actually physically removes the tenant from the premises. This Motion is called a Motion to Stay the Writ of Possession

What is a Motion to Stay the Writ of Possession?

Simply put, the Motion to Stay the Writ of Possession is a document filed with the court asking the judge to “stay” or “stop” the sheriff from executing the Writ of Possession and removing the tenant. It can be a typed or handwritten document filed by the tenant or the tenant’s attorney if one is retained. The Motion to Stay the Writ of Possession may state that the tenant paid the rent, the eviction was unfair, the tenant needs more time, the case is defective or just about anything on earth that the tenant can come up with to convince a judge that the eviction should be stopped or make the judge feel sorry for the tenant. If the judge is swayed, the tenant gets their day in court.

How does the Motion to Stay the Writ of Possession affect the process?

Once this Motion is filed with the court, it is immediately sent to the judge, an emergency hold is put on the case, and the judge reviews the Motion and the reasons why the tenant feels they are entitled to having the Writ of Possession stayed. A Motion to Stay a Writ of Possession is taken very seriously by the court system, and the judge will almost immediately review the Motion. If the judge upon reading the Motion feels that there is some real legal basis why the eviction should be “stayed”, the judge will grant the Motion without a hearing and set it for a later hearing, or will set an EMERGENCY hearing to have the landlord and the tenant present evidence as to whether or why the Writ of Possession should or should not be stayed. If the judge upon reading the Motion to Stay the Writ of Possession feels it is completely without merit, the judge will enter an Order denying the motion, and the eviction continues on.

The judge Grants the Motion to Stay the Writ of Possession – Now what?

If the judge grants the Motion to Stay the Writ of Possession, the judge enters an Order Staying the Writ of Possession and will set a hearing, which basically gives the tenant a chance to present evidence as if the case were contested and a hearing were set in the beginning stages of the case. If the tenant has failed to post the rent money into the court registry, it is doubtful that the tenant will prevail, but if the tenant can prove that possibly they paid the rent and it was mis-posted by the landlord, or placed a large sum of money into the court registry, even if late, there always is a chance that the tenant can win the action. Your attorney may file a Motion to Lift the Stay of Writ of Possession if the judge grants the tenants Motion to Stay the Writ of Possession.

The judge Denies the Motion to Stay the Writ of Possession – Now what?

If the judge denies the Motion to Stay the Writ of Possession, the case proceeds on without delay just as if nothing happened. If there is a hearing set, and at that hearing the landlord prevails, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession. If your attorney has filed a Motion to Lift the Stay of the Writ of Possession, and the case is heard and decided in the landlord’s favor again, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession.

Sounds confusing doesn’t it? Is it all that bad?

The Motion to Stay the Writ of Possession is a bit confusing, as the landlord thinks they have won the case completely, only to be thrown this curveball at the end of the process. Will the case be delayed? Often, but usually by only a few days if the judge grants a hearing to the tenant. In the vast majority of cases when the tenant files a Motion to Stay the Writ of Possession, the judge reads it and denies it right then and there, and not a moment is lost and no hearing occurs. The worst case scenario is that the judge will grant the Motion to Stay the Writ of Possession, a hearing will be set, and the judge will feel your case is defective or there is a good legal basis why the tenant should not be evicted. Remember what Yogi Berra said: “It’s not over until it’s over”.

Is there anything that can be done to prevent the tenant from filing a Motion to Stay a Writ of Possession?

Absolutely nothing. A landlord’s best defense though is to make sure the eviction is filed properly, the notice was done with care, the landlord did not take any rent during the eviction action, and the landlord’s records are clear and concise.

LOCKOUT PROCEDURES

by Harry Anthony Heist, Attorney at Law
If you have a policy whereby if a tenant is locked out of the premises, he or she is to call a locksmith, you may not have to read any further. In this case, you have no involvement with the situation, and hopefully the locksmith will not have damaged the lock and/or changed out the lock. Hopefully as well, the tenant does indeed call a real locksmith rather than simply break the lock to gain access. Many of our clients do have a policy of opening up a locked door for a tenant and sometimes will charge the tenant for this service. How the landlord goes about giving access to a tenant can have a serious effect on the landlord’s liability.

The Scenario

It is 3 a.m., and your on-call maintenance tech or maybe you receive the dreaded phone call or knock on the door. The “tenant” has misplaced his keys and is obviously intoxicated. You are quite familiar with this tenant, having seen him at the pool, you have seen him drop off rent in the office, he plays volleyball on Sundays, uses the exercise room and has even made maintenance requests. You simply grab the keys and allow him access. The problem is that he is not an actual tenant, but has been an unauthorized occupant for quite some time. He has now decided, once you grant him access, to take his roommate’s valuables, leave, never to return again.

The Problem

It is quite obvious what the problem is in this case. You failed to see if this person was indeed the tenant on the lease, and the ramifications could be severe. Each year we see this scenario unfold, and landlords are faced with paying fairly large sums of money to the actual tenant who was not home when you allowed the unauthorized person access. You may argue that it was not your fault that the unauthorized person took his roommate’s personal property, as after all they have been living together for quite some time, but the problem remains. You allowed an unauthorized occupant, not on the lease, access to the rental premises.

Creating a Policy

Your first step should be to create a written policy for your company regarding lock outs. All employees who engage in allowing a locked out tenant access should be required to read this policy and sign a statement that they have read it and agree to abide by the policy. No exceptions should ever be made to the policy. Your next step will be to provide the lock out access rules or procedures to the tenant and make this part of the lease, the Community Rules and Regulations, or a separate addendum to which the tenant has clearly agreed.

Lock out access procedure

In the event a tenant is locked out, they need to follow certain procedures for you to even act upon this lock out. They should be required to provide you with 2 forms of government issued identification. This identification should then be brought to the office and compared with the copies of the identification you have in the tenant’s file. Names should match up completely, and a visual examination of the picture ID you have in the file should match up with not only the ID the tenant is showing you, but the tenant himself. Once this match is established to the satisfaction of you or the bleary eyed maintenance tech who was just awakened, the identification provided by the locked out tenant should be copied, notes made on the copy, and the copy of the ID placed in the file. If the tenant cannot provide you with the required ID, the tenant should not be given access. If the tenant cannot provide you the required identification, there is no doubt that the tenant will not be satisfied, and an altercation or argument could ensue. Keep your lock out policy handy in the event the tenant is not able to satisfy your requirement, express regret, and tell him he must hire a locksmith.

But, we know this tenant!

Most of the legal problems we deal with occur when the landlord or an employee makes an exception to the rule. Every time an exception is made, the chances of a problem increase dramatically. If an exception is made once, it may be expected that an exception is made the next time. If you make an exception for one resident but not another, you run the risk of being accused of discrimination. People often look alike, especially when related to one another. Most recently, we dealt with a situation where the brother of a tenant gained access due to looking similar to the actual tenant. Had the maintenance tech carefully looked at the identification and made the comparison, the difference would have been evident, but this was not done and the landlord paid the price.

The inherent problems with lock out access

a. The person giving access will need to have both access to the keys to the unit and the tenant’s file. Due to privacy issues, it is recommended that there is limited access to the tenant’s file.

b. Some companies fail to keep a copy of the tenant’s identification in the file. There is absolutely nothing illegal about keeping a copy of the tenant”˜s identification in the tenant’s file. This is not a fair housing violation. We strongly urge you to keep a copy of the picture identification in the tenant’s file.

c. Many landlords do not have a written policy for the employee who will be engaged in granting access. This is simple. Write one up now.

d. Many landlords have not provided the policy or rules to the tenant regarding lock outs. Create your rules, and distribute them to all tenants.

Charging the tenant for giving access

After reading this article, you may have decided to take the route of telling the tenant that he must call a locksmith, but some of you may have decided that you will assist in lock outs and should be compensated if you grant access. We agree. The extra work involved and the increased liability on the landlord justifies a reasonable charge to the tenant. Some of our clients require this to be paid before the access is granted; others charge it as additional rent which must be paid with the normal rent at the next payment period. If you are going to charge the tenant for anything, it must be clearly agreed to by all parties involved. Landlords often create charges upon a whim and expect that they can force the tenant to pay the charge. Clearly state the charge in your lease or whatever is incorporated in your lease, such as the community rules and regulations.