Legal or Not July 2018
LEGAL OR NOT by Brian Wolk of Heist, Weisse and Wolk, P.A.
Q: Last month one of our residents moved out of our apartment community after living in her unit for the past four years. The carpet was a year old when she moved in. She left mildew stains all over the tub and sink. Trash was scattered throughout the apartment home, and the carpet is stained due to her labradoodle. Our housekeeper charged us $175.00 (when the charge would normally be $100.00), and it cost us $600.00 to replace the carpet. We usually change our carpeting out every five years. I made sure that we sent out our Notice of Intention to Impose Claim on Security Deposit as required by law, and we charged the resident $775.00, our true cost to restore the apartment to its proper condition. Yesterday I received a nasty email from the resident’s attorney, demanding return of the $775.00 within 5 days. I called the attorney, but was placed into her voice mail. Do you think that we need to return the $775.00 to the resident? Did we charge the correct amount for the damage to the apartment?
A: The first error you made was attempting to talk to the resident’s attorney. You need to remember that the attorney works for the resident. You could end up jeopardizing your case if this case ends up in litigation, and you unwittingly divulge information to the resident’s attorney. Make sure that your attorney contacts the resident’s attorney. Next, the resident will usually not be held responsible for damages due to ordinary wear and tear. If the usual housekeeping charge is $100.00, then the resident should have only been charged $75.00, the amount above ordinary wear and tear. With regard to the carpet charge, if you end up replacing the carpet every five years as part of your normal practices, then you should not have charged the resident anything for the stains on the carpet, because the carpet was approximately five years old at move-out, and it was your normal time to replace the carpet anyway. You need to strongly consider returning the deposit in order to avoid losing your case in court and exposing your company to a potentially high attorney fee award.
Q: This month one of our residents was delinquent with her rent. She was served with a 3-day notice and subsequently sent to eviction. Today in the mail we received a copy of the answer filed at court by the resident’s attorney, who claimed that the rent was indeed paid by the resident, and that the money orders were placed in our drop box. The resident’s attorney admits that the resident did not retain the receipts for the money orders. Our drop box is very similar to a mail slot, and there is a box on the floor below the slot. We have a sign posted which states that the drop box should only be used during non-business hours. Will we win this case?
A: The outcome of your case may or may not be dependent upon the controls that you have in place with respect to the security of your drop box. Your attorney should request that the court require the resident to produce receipts for the money orders, but if the resident’s attorney convinces the judge that the money orders were left in your drop box by the resident, expect to lose the case, receipts or no receipts. The resident’s attorney may also attempt to persuade the judge that your drop box was accessible to many people in your office, which would also hurt your case even if the resident could not produce receipts. You should review all procedures with regard to your drop box system, including security procedures, and evaluate how the drop box is emptied. Our office recommends that you not use them. If the eviction is denied for any reason, your company will be required to pay the resident’s attorney’s fees, an amount that could easily run in the thousands of dollars.
Q: We have three teenage children living in our apartment community who have been causing multiple unreasonable disturbances over the past six months. They have thrown lounge chairs into the common area pool, played football in our parking lot, and often use profane language when addressing other residents. Many of our residents want out of here and are non-renewing! I have talked to the parents of the children at least five times over the past six months. They always deny that the children are causing any problems. Although there are no witnesses, we suspect that these kids are breaking into other residents’ storage units. I am at my wit’s end! Can I force the residents to vacate?
A: From the beginning, you should have served the parents with Seven-Day Notices instead of only talking with them. You can chitchat with the residents all day long; however, you will not be moving any closer to starting an eviction action; your talks with the residents have no real, beneficial, legal effect. If the lease violation is one that is curable, then the property manager should issue a Seven Day Notice to Cure. If the resident is still out of compliance after being served with the Seven Day Notice to Cure, and rent has not been accepted, the resident should receive a Seven Day Notice of Termination. For more serious violations, such as felony criminal acts which occur on the premises, cure notices need not be issued, and the resident should instead be promptly served with a Seven Day Termination Notice. Failure to timely deliver the proper legal notices prolongs the process and adversely impacts your resident retention rate. With regard to the suspected criminal conduct in this case, do not hesitate to contact the police if need be. One last point: it is crucial that you do not discriminate based on familial status. You should be very careful and consult with your attorney to make sure your notices have the proper wording.