Legal or Not January 2018

LEGAL OR NOT by Brian Wolk, Heist, Weisse and Wolk, P.A.

Q We are experiencing huge problems with one of our residents, including playing loud music, an unauthorized pet cat and an unauthorized occupant. We prepared a Seven-Day Notice of Noncompliance with Opportunity to Cure. As we expected, the lease noncompliances were not cured.  We sent the Seven-Day Notice and lease to our attorney, and she is saying the notice is “defective”.   It appears that we worded the notice incorrectly by copying and pasting the exact wording from our lease that pertains to occupancy, pets and disturbances. Now she says we have to start all over again.  This problem has been going on for a long time, and we are going to lose great residents. How do we do this correctly?

A: The fact that “this has been going on for a long time” points out a serious flaw in your approach. The moment a resident is in noncompliance, that person needs to be served a Seven-Day Notice of Noncompliance with Opportunity to Cure: no letters, no discussion and no delays. Too many property managers sit back and feel that a conversation with the resident or letter to the resident will cure a problem, and sometimes it does, BUT if it does not, you MUST serve a proper Seven-Day Notice of Noncompliance with Opportunity to Cure. Now, you are facing greater delay.   A proper Seven-Day Notice should never parrot the lease. The Seven-Day Notice is not a means to tell a resident what the lease provides; it is meant to convey to the resident what he or she needs to stop doing or start doing so to be in compliance with the lease. Quoting the pet clause or the occupant clause simply tells the resident what the lease provides.  It is often useless, as the resident’s particular noncompliance is buried within the lease clauses.   You must describe the noncompliance in enough detail on the Seven-Day Notice so the resident will know the actual noncompliances.   Your attorney should assist you with the wording on each Seven-Day Notice. Some noncompliances that are not dealt with immediately can become almost impossible to rectify later due to waiver, based upon you continuing to accept rent knowing that the resident is in noncompliance.

1. Q. Sometimes our older residents pass away either in the apartment, or they go to a nursing home or hospital and die shortly thereafter. The moment a resident dies, we are often hounded with phone calls by relatives who want to get into the apartment. Some even have a power of attorney and try to say that we must let them have access because of this. We were wondering if there is some way that the resident can sign a lease addendum at move-in that will allow a friend or relative access to the apartment to clean it out or get needed items if the resident dies. Is that possible?

A:  That “simple fix” seems like a great idea, and it certainly would be easy enough to do, but it is not legal at all. When a person dies, no one has authority to do anything on behalf of the deceased individual until a court decides that a person can act. Any person designated before death will have no power to do anything once the person dies. A power of attorney is only valid when a person is alive or incapacitated. A power of attorney ceases to convey any authority the moment a person dies. Until such time as an estate is opened up in probate court, and a personal representative (also called an executor in many states) is appointed, everything stops. The probate court must approve and validate the will and appoint the personal representative. Many residents who die in apartments do not have significant assets justifying the formation of an estate, so the relatives do not bother hiring an attorney to open up a probate estate and spending a lot of money when there may be not much there.  When no estate is formed, this can leave you with a mess. Simply put, no one can be given access until the sooner of one of two events take place. The relatives must open up a probate estate and a personal representative gets appointed, who then can do anything the resident could do, and you can deal with the personal representative directly, OR you must wait 60 days from the date of death.  If a probate estate is not opened in that time, and no one else is occupying the apartment, the unit becomes yours. Under the law, all the contents will become abandoned property subject to disposition as you see fit if you have the proper abandoned property wording in your lease agreement.

Q: Our property is now virtually 100% smoke-free. For the most part, it has been working well until recently, and we proudly advertise our property as smoke-free.  We have a nice designated covered smoking area a good distance from the buildings, and smoking is totally prohibited in the apartments, common areas and within 200 feet of the apartments. Unfortunately, we are receiving resident complaints that other residents are smoking in the hallways, their cars and sometimes on the balcony. One resident is actually threatening to break her lease, as she said that because of allergies, she picked our apartment community specifically because we prohibited smoking, and she sees people violating the rules. We cannot be everywhere at once, and people do what they want, but how are we going to enforce our rules? Should we let the complaining resident out of the lease? She is threatening a lawyer on us.

A: When a property decides to go smoke-free, management is usually in for a surprise. You are now undertaking a legal obligation to make sure that the residents abide by the terms of the lease agreement and the smoke-free policies. Enforcing your smoke-free rules need to be done like enforcing any other lease clause. If you receive a complaint or witness a noncompliance, you must take immediate action just like you would if you saw that someone had an unauthorized pet or occupant.  You should not hesitate to act, since any delay could result in you being accused of not providing a smoke-free environment, thus you breaching the contract. The moment you get a credible complaint about another resident, you should serve your Seven-Day Notice to Cure. You must then follow up vigorously, and like any other noncompliance, prepare to gather proof. The words, emails or other written complaints of another resident will not be enough to win a case in court. That resident must come to court and testify, and a judge will oftentimes require testimony from more than one complaining neighbor.  You need solid proof that the resident is actually smoking in violation of your rules and the lease. This may mean you need actual video surveillance, photos, residents who will come into court and testify they saw another resident smoking, and also possibly staff members who witnessed the smoking. If a resident is complaining about another resident smoking, and you are not able to rectify the situation or gather the needed proof, but you are convinced that the resident is in fact smoking, we recommend you give the complaining resident the ability to break the lease without penalty.