Legal or Not September 2018

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

Q: Our apartment community served 41 3-day notices this month. The rent is due on the first of the month, and according to our lease, the late fee is owed after the fourth of the month. One of our residents is creating turmoil because they have excessive guest traffic in and out of the apartment home. We suspect illegal narcotics are being sold out of the unit, but as of yet the police have made no arrests. We decided to catch this resident off guard and serve him a 3-day notice on the third of the month, instead of waiting until the fifth of the month like we did with all our other residents that have not paid rent.  Our lease indicates the late fee applies if rent is not paid by the fourth.  As we suspected, the resident failed to pay the rent prior to the expiration of the 3-day notice. Would it be wise to attempt to evict this resident for nonpayment of rent?

A:  It is a very bad idea to attempt to evict for nonpayment of rent if your true motive for filing an eviction action is unrelated to the nonpayment of rent. Serving the resident a 3-day notice very early in the month is a hint to the judge that the nonpayment of rent eviction may be some other type of eviction case in disguise. Judges will frown upon that. Judges require property managers to use the seven- day notice process if evicting for reasons other than nonpayment of rent. Also, since you are treating the resident differently by serving the 3-day notice earlier than normal, your company may become an easy target in an eviction lawsuit for not following normal default procedures, and if the resident is a member of a protected class, you actions could invite fair housing litigation.  Even though the lease requires rent to be paid on the first of the month, it also states that the late fee will not be assessed if the rent is paid by the fourth of the month. Some judges may hold that rent is not truly late until the fifth of the month. If the resident obtains an attorney, contests the eviction and prevails in court, your company could be liable for the resident’s attorney’s fees, an amount which could be substantial. 

Q: I moved to Florida from West Virginia four months ago. I want to dramatically  upgrade the marketing efforts of my apartment community. When I lived in West Virginia, we always try to make it worth their while for prospects to tour our apartment community.   For instance, we offered huge discounts to our residents if new residents informed us that an existing resident referred them to our office. This plan was very successful, and we operated at full occupancy.  May we institute the same referral incentive program in Florida?

A: It is crucial to verify that your proposed program is in compliance with Florida law. Unfortunately, as often is the case, a property manager who relocates from another state assumes that the way business was handled elsewhere in the United States will also hold true in Florida. That is simply false! Those property managers will have residents that contest their evictions, and those residents will sometimes obtain an attorney to represent them, causing the landlord to be liable for significant attorney’s fees and court costs.  It is crucial to keep in mind that each state has its own unique set of laws dealing with property management operations. Never assume that Florida law mirrors the law of your former state. With respect to your question, Florida law places very strict limitations on your plan.  Florida Statutes permit an apartment community to pay money to or give something of value not to exceed $50.00, such as a gift certificate or rent concession to a current resident who refers another person to the apartment community.  $50.00 is the limit!  You should also keep in mind that this limit does not apply if the fee is being paid to a licensed real estate broker. We strongly recommend that if you do have a referral program, that it be in writing to avoid any confusion.

Q:  Ricky, our resident, moved in 6 months ago and just complained to us of bedbugs in the unit. Our pest control professional was contacted and confirmed that the infestation is severe, but he will not actually blame the resident in writing. We never had any complaints from prior residents that lived in that unit and strongly suspect that the current resident brought the bedbugs in.   No adjacent units have a bedbug problem of which we are aware.  None of the resident’s furniture matches, and our maintenance tech witnessed the resident pulling furniture out of the dumpster. Also, the unit is absolutely filthy inside.  Is the resident responsible to pay for the bedbug treatment? The resident is adamant that he is not to blame for this problem.

A: If you were to hold a resident financially responsible for the typical damages that occur to a unit, such as carpet damage, marked up walls, broken blinds, etc., you would need to prove that the damage was not there when the resident moved in, and you would need to prove it was there when the resident moved out. Failure to prove either of these would result in you not being able to charge the resident for damages. A similar situation occurs with bedbugs.  You need to be able to prove that there were no bedbugs in the unit when they moved in.  This is often next to impossible, unless you have a certified pest control professional inspect the unit prior to move-in and declare it bedbug free. The good news is that many pest control companies are providing this service now, and if you are not using one that does, you really should immediately do so right away. In your present case you can try to charge the resident for the bedbug eradication, but if Ricky refuses to pay, you it could be very difficult to evict him for that failure to pay. In any event, if you do experience bedbugs in the future, remember that in the apartment community context, Florida law places the burden of extermination on the landlord, unless the landlord can prove the resident caused the problem.   Moreover, you do not want this problem to spread to other units.  Being able to force the resident to pay is a separate issue. A bedbug addendum may force the resident to assist you with preparation for the bedbug treatment, but the addendum cannot safely shift the actual pest control expense on to the resident without proof that the resident caused the bedbug infestation.