Lease signings take place in our Dunwoody office located at:
2408 Mt Vernon Rd., Suite 150
Atlanta, GA 30338
You may request a copy of your lease to review before signing. Please click here for a sample lease.
At the time of lease signing you will need to provide a valid photo ID that matches the names on the application. Also, at the time of lease signing all required funds must be provided including the full Security Deposit and rent. Rent will be prorated when the lease dates begin during the month. Depending on the timing of the lease, we may require the next month's rent at the time of lease signing. Please note that we only accept CERTIFIED FUNDS at the time of lease signing. That includes Cashier's Checks or money Orders. We do not accept Cash ever. And we do not accept checks as payment for the funds due at the time of lease signing.
VOLUME 8 - ISSUE 9 LEGAL UPDATE
by Michael Geo. F. Davis, Attorney at Law
Since the Landlord/Tenant Act doesn't provide for the granting of access to anyone other than the landlord, the landlord has no right to grant entry to someone who is not a lease signer without the permission of a lease signer or pursuant to other statutory mandates or judicial orders or decrees. This is true even if the landlord believes it would be in the resident's best interest to allow entry to someone else. In this article we are talking about the landlord giving access - giving a key or opening the door to the premises with the landlord's key. References in this article to the "resident9quot;ќ mean a lease signer, not an occupant. The fact that someone may have a key and may claim to have been given permission by the resident or may claim the right to occupy the premises does not mean that the landlord should give that person access.
Consent of the resident
The landlord can allow access to anyone with the resident's permission. In most instances the landlord is not required to accept an oral authorization or even to allow access at all. It is within the landlord's discretion to refuse to honor a request for access, unless the landlord is legally obligated to comply. So, if a landlord is uncomfortable about giving access to someone, he is not required to do so. Of course, this does not apply when the landlord has previously agreed in writing to allow access, or is presented with a valid request or demand based on legal or judicial authority.
Multiple lease signers
If there are multiple lease signers, the permission of any one of them is sufficient, as each of them has an equal right under the lease to permit access. Permission should always be written, especially when it is from one of multiple residents. However, in the case of multiple residents, the landlord may often opt not to give access to a third party, particularly if the landlord is on notice of a dispute between the residents. What about an adult individual who is named on the lease but has not signed the lease? It can be argued that the landlord should be able to give access to that individual, because when the lease was executed, all signers were essentially acknowledging that person's right to occupy the premises. The landlord is still advised that all adults who will occupy the premises should sign the lease, with only limited exceptions, such as a mentally disabled adult or a caretaker. If by accident or design, a landlord is not requiring all adults to sign the lease, then in an abundance of caution, the lease may contain a provision permitting the landlord to give access to any adult on the lease, whether a signer or not. When the lease signer requests the landlord to change the locks and effectively lock out the listed occupant, we recommend against doing so. It can be helpful if the lease contains a provision allowing the landlord to give access to non-adults on the lease. Note that minor children of the lease signer, who are listed on the lease, can be permitted access to the premises, as they are the natural or legal dependents of their parents or guardians.
Guarantors, who have signed a separate guarantee addendum and have not signed the lease, have no right to access. Although they have financial liability for any monetary defaults, they have no rights under the lease. This is true whether they are paying the rent or not. This is sometimes difficult for parents of the leaseholder to understand, especially when they are paying the monthly rent, but it is the law. The landlord is advised against having guarantors sign the lease. It can and does create problems in enforcing the lease against such lease signers, who are not actually occupying the premises. Guarantors, commonly called co-signers, who have signed the lease arguably have all the rights under the lease, including the right to access, unless the lease provides otherwise.
Occupants not on the lease, whether authorized or unauthorized, should not be granted access. The unauthorized occupant is a familiar term. It might surprise landlords to learn that an unauthorized occupant can be authorized by the landlord's actions, such as accepting rent from the occupant, or inaction, such as sending a Seven Day Notice of Noncompliance with Opportunity to Cure without any further follow-up for a significant period of time. Even if the landlord finds himself having authorized an occupant, that occupant's right to occupy the premises does not entitle him to be granted access by the landlord if he is locked out. Whenever someone claims that they are occupying the premises and have been locked out by the resident, it is not the landlord's duty to sort out the legal technicalities. The landlord should call the police. The usual police procedure is to determine if the occupant is residing at the premises by ascertaining if he is receiving mail there, if his clothes are there, if he has any other place of residence, etc. If the police determine that the occupant is residing there, then the police will order that he be given entry, and the landlord should comply with the police directive.
The vacating addendum or agreement
If a vacating addendum or agreement has been signed by all residents and the landlord and the vacating resident has been released from the lease, then the vacating resident has no further lease rights or obligations. The resident who has vacated is not entitled to access by the landlord, even if she is just picking up some forgotten item. She will have to wait for the remaining residents to grant her entry.
Death of the resident
If the sole resident of the premises dies, the landlord neither has a duty to secure the premises, nor does the landlord have the right to grant access. If someone has the resident's key, the landlord is not responsible for changing the locks to deny entry. If a landlord suspects something may be wrong with who is accessing the unit, the police can be called to investigate. If family or friends do not have a key, the landlord has no right to grant them access. There are two limited exceptions to this refusal to grant access. Florida law does permit the landlord to give access to search for a will, and it is customary to allow access to obtain clothes for the viewing/burial. The landlord should be present anytime such access is given to insure that nothing else is taken. If the situation involves the death of a co-resident and the surviving resident will not allow the family entry, nothing has changed from the landlord's point of view. This is a civil matter between the parties, and the landlord should not grant access, even to search for a will or for burial/viewing clothes. In all deceased resident cases the landlord can grant access to the personal representative of the decedent's estate, who should have a copy of his Letters of Administration from the probate court.
Law enforcement requests for access
We recommend that the landlord give access pursuant to a search warrant. Often police will request the landlord's "cooperation9quot;ќ in obtaining entry into a resident's premises without a warrant. Despite the desire to assist the police, the landlord should not do this. The landlord does not have any inherent right to allow law enforcement into the premises because "he owns it"ќ. It may come to the landlord's attention that the premises are being used for illegal activity. The maintenance staff or a vendor may report some illegal activity that they observed when in the premises. A common occurrence is the report of seeing drugs or drug paraphernalia. The landlord should first be sure that the access by maintenance or the vendor was authorized. Then the landlord can report the illegal activity to the police just as any other citizen could. If the police investigate, the landlord cannot volunteer access to the premises. The police must order the landlord to give them access. There are situations when the landlord is concerned about a resident that has not been seen or heard from in an unreasonable amount of time, or for some other reason, the landlord suspects foul play or harm to the resident. The landlord can call the police who will do a "welfare check"ќ on the resident and order the door opened to check, if the police feel there is cause for concern.
Other governmental requests for access
There are other city, county, state and federal agencies that in certain circumstances have the right to demand access to premises. This can be pursuant to codes, ordinances, statutes or a variety of court orders. It is always proper for the landlord to request under what authority access is being requested. If in doubt, a landlord should consult his attorney.
An all too common problem today is the problem of domestic abuse. A landlord can find himself in a situation where a resident is begging him to change the locks to protect her from an abuser co-resident. If the abuser is not an authorized occupant, then the landlord can change the locks. The landlord can instruct the unauthorized occupant to call the police if he wants access. If the abuser is a lease signer, then all parties, including the landlord, are bound by the lease. The abused resident can change the locks, but is required to give the landlord a key. The landlord should not change the locks, even if requested to do so by the abused resident. This avoids any implication that the landlord violated the statutory prohibition against locking residents out. If the abuser wants a key, the landlord can take the position that the landlord did not change the locks and the abuser should take it up with the other resident or the police. Unfortunately, in the absence of a restraining order, the police will probably require that the abuser be given a key if he is either a lease signer or resides in the premises.
In domestic abuse cases the landlord can suggest to the abused resident the possibility of obtaining a restraining order. This goes by many names in different jurisdictions, such as a domestic violence order, an order of no contact, etc. Whatever the name, it is the court's order that the abuser may not enter the premises. After the restraining order is obtained, the abused resident can change the locks or have them changed and give a copy of the new key to the landlord. The landlord should not change the locks. If the abuser asks for a copy of the new key, the landlord can call the police to sort it out. Unless the abuser has a court order allowing him to remove his belongings from the premises, the abuser is unlikely to be given access and may even be arrested for violating the restraining order.
Power of attorney or other written authorization
A common document is the power of attorney (POA). The POA grants authority to someone (the attorney-in-fact or agent) to act on behalf of someone else (the principal). A general POA will allow the agent to do anything the principal could. A limited POA only authorizes the agent to do certain actions. The landlord may allow access to an agent with a general POA, or limited POA specifying the right to access to the premise, signed by the resident. If the landlord has some reason to doubt a POA's authenticity, validity or scope, he should not invite litigation by ignoring it. The landlord can be subject to liability for a refusal to honor a valid POA. Any questions should be referred to the landlord's attorney. A resident does not need to sign a POA to authorize access. Any written dated statement, even an email, will suffice, as long as a reasonable person (read here "a judge"ќ) would find that the landlord acted reasonably in relying on it. Again, any questions should be referred to the landlord's attorney.
Emergency contacts, family, friends and rental companies
Most landlords request the resident give them emergency contacts, usually on the application to rent. Unless the application or lease provides a right of access to emergency contacts, they have no such right. The resident's family and friends, including boyfriends or girlfriends, have no right of access. When there is no legal right of access, it doesn't magically appear if the landlord accompanies the individual. This can lead to a tough refusal to allow access when the resident is in the hospital or otherwise incapacitated. The landlord should insist on something in writing from the resident authorizing access by the particular person. The landlord cannot give access to rental companies to repossess furniture or appliances, regardless of any clauses in the rental company agreement authorizing access. The landlord should keep in mind that bending the rules on access is at the landlord's substantial risk.
The attorney's advice
The landlord's decision to improperly give someone access to the resident's premises can result in significant liability to the landlord, and can even lead to criminal charges. This can be so even if the landlord had the best of intentions. This is no time for the landlord to be guessing as to whether she has the legal authority to allow someone entry. The landlord should seek an attorney's advice.
by Brian P. Wolk, Attorney at Law
The vast majority of property managers in Florida realize that self-help evictions are not legal in Florida. They understand that outrageous conduct, such as changing the locks to an apartment home in an effort to force a resident to vacate without a writ of possession being executed by the sheriff, will lead to significant liability for the landlord. However, many property managers fail to realize how significant that liability can be. Even the most seasoned property manager may not be fully familiar with Florida Statute 83.67, which lists many prohibited practices and the resulting substantial penalties that can be imposed if the landlord violates that statute. A landlord can easily run afoul of the statute, as it prohibits the landlord from engaging in many activities in addition to illegal lock changes. If the landlord engages in a prohibited practice, it would not be relevant that the resident was severely delinquent in rent, engaged in poor housekeeping, or violated other lease terms. There is no shortage of attorneys who are willing to represent a resident when a landlord has clearly committed a prohibited practice. Why you ask? Because the landlord will be responsible to pay the resident's attorney's fees in the event the resident sues and prevails in court, which could prove to be very costly to the landlord. This article will discuss at length the provisions of Florida Statute 83.67.
Why the legislature enacted Florida Statute 83.67
The Florida legislature intended to curtail the practice of self-help evictions when Florida Statute 83.67 was enacted into law. The legislature wanted to create an economic incentive to the landlord to file an eviction action in court, as opposed to circumventing the law and utilizing self-help. In fact, during the legislative process, a senate committee described the bill which would later become Florida Statute 83.67 as an attempt to prohibit landlords from engaging in such practices as terminating utilities, prevention of a resident's access, or removing a resident's property in an attempt to coerce the resident into vacating the premises.
Termination or interruption of services
Florida Statute 83.67 (1) prohibits a landlord from causing, directly or indirectly, the termination or interruption of any utility service furnished to the resident. Those utility services include, but are not limited to, water, heat, light, electricity, gas, elevator, garbage, collection, or refrigeration. This prohibition will apply whether or not the utility service is under the control of, or payment is made by, the landlord. A landlord must be aware that some unexpected services, such as refrigeration, garbage collection and elevator service are covered under the statute, since they may not traditionally be viewed as utilities.
Most common scenario involving interruption of services
Very often a resident is required under their lease to place the electric service in the resident's own name, but fails to do so, or has obtained electric service, but does not make the required payments to maintain the account. As a result, the electric service often remains or reverts back into the landlord's name. The apartment community manager then learns of this and is justifiably frustrated. The apartment manager then calls the electric company and requests that the electric service be disconnected from the resident's apartment home. Clearly, electric service is a utility that is covered under the statute. The landlord has now committed a prohibited practice. In those situations in which the resident is required to place electric utility service under the resident's own name, it is often better to not have the power on under the landlord's name at move-in, if otherwise allowed by law. However, this may not be an ideal solution during hot summer months.
Difference between direct and indirect interruption
The statute prohibits the landlord from directly terminating or interrupting the utility services furnished to the resident. For example, if the landlord cuts a power line, this would be an example of the landlord directly causing the interruption. A more likely example of a direct interruption would be the landlord simply telephoning the power company and having the resident's power turned off. However, the law will still penalize the landlord who simply fails to pay the electric bill, which then causes the utility provider to discontinue service. In that example the landlord has indirectly interrupted the utility service furnished to the resident. Florida Statute 83.67 (1) clearly penalizes a landlord who indirectly terminates or interrupts any utility service furnished to the resident.
Requirement as to the length of interruption
A careful reading of Florida Statute 83.67 (1) will confirm that there is no minimum time frame for liability to apply. Therefore, the landlord who has bad intent and disconnects the utility service furnished to the resident for even one minute will have technically committed a prohibited practice.
Consequences for termination or interrupting more than one utility
Suppose a landlord who was upset with a delinquent resident shuts off the electric utility and the water service provided to the resident. The landlord has committed two distinct prohibited practices. Termination or interruption of more than one utility entitles the resident to damages for each utility terminated.
Statute may cover more services provided to the resident than listed
Florida Statute 83.67 (1) lists a number of utility services provided to the resident which are covered under the statute. However, the statutes also states that the services covered are not limited to the specific ones mentioned. Therefore a court may interpret cable, satellite or phone as a covered utility service.
The lockout of the resident
Many years ago, it was legal to lock out a resident as a means of self-help eviction. That practice is no longer legal. Florida Statute 83.67 (2) prohibits the landlord of any dwelling unit from preventing a resident from gaining reasonable access to the dwelling unit by any means, including but not limited to, changing the locks or using any bootlock or similar device. For example, suppose the resident has failed to pay rent and will not return the property manager's phone calls. The property manager, in an effort to force the resident to talk about the delinquent account, changes the locks to the resident's apartment home and posts a note on the resident's door, advising the resident to come to the office to talk with management. The property manager has committed a prohibited practice. However, if the property manager has not changed the locks or threatened to lock out the resident or remove the residents personal belongs, and merely tells the resident to vacate, that would likely not be considered a prohibited practice, because the resident is not being deprived of reasonable access to the premises.
Military servicemember discrimination
Renting to a servicemember is certainly not without risk, as the resident may have additional early lease termination rights that non-military residents do not have, as well as extra protection during the eviction process. Landlords are often aware of that. Nonetheless, a landlord may not discriminate against servicemembers by refusing to rent to them. If the landlord does discriminate, then a prohibited practice will be committed. Florida Statute 83.67 (3) prohibits a landlord of any dwelling unit from discriminating against a servicemember in offering a dwelling unit for rent or in any terms of the rental agreement.
Display of flags
Many landlords insert language into their leases which prevent residents from hanging items from the apartment home. In many cases, a resident will hang clothes, banners or flags from their balconies. The flags may relate to the resident's country of origin or simply a sports team related banner. However, regardless of any provision in a rental agreement dealing with flags or decorations, Florida Statute 83.67 (4) prevents a landlord from prohibiting a resident from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one half feet by 6 feet, in a respectful manner in or on the dwelling unit. The United States flag shall be displayed in accordance with Florida Statute 83.52 (6). That statute prevents the resident from defacing or damaging the landlord's property. Florida Statute 83.67 (4) provides that a landlord is not liable for damages caused by a United States flag displayed by the resident. The statute also provides that any United States flag may not infringe upon the space rented by any other resident.
Abandoned property and removal of items
While the majority of landlords know that removal of the resident's door will subject them to liability for a self-help eviction, the statute prohibits much more than the removal of doors. Under Florida Statute 83.67 (5) the landlord may not remove the resident's outside doors, locks, roof, walls or windows, as that would be considered a prohibited practice. The only exception to this is if the removal of the above items were for the purposes of maintenance or repair. Landlords in a misguided attempt to circumvent this law, will claim that they are removing items for routine repairs, and then delay the repair to force the resident to vacate the apartment home. Landlords who undertake such actions will likely lose in court after the resident brings suit, and the resident can be awarded significant damages in addition to an attorney's fee award.
Perhaps the most common prohibited practice committed by even the best intentioned landlords involves removal of the resident's personal property. Often, the landlord assumes an apartment home is abandoned based on gut instinct and circumstantial evidence. The landlord then disposes of the personal property perceived to have been left behind. The resident at a later date contacts the property manager and demands the return of the personal property, and further indicates that the unit had not been vacated. Besides committing a prohibited practice, the resident can sue for civil theft and conversion; criminal penalties may also apply.
Abandoned property lease language
Florida Statute 83.67 (5) exempts a landlord who disposes of items left behind by a resident if the landlord can establish that the rental premises were abandoned or surrendered, and the following language is included in the rental agreement signed by the resident: BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY.
Landlord will be liable if no abandonment or surrender
It is vital that the property manager understand that even with the proper wording in the lease regarding abandonment, the rental premises must be legally abandoned or surrendered as set forth in Florida Statute 83.59 (3) before the landlord can safely dispose of the resident's personal property. The statute defines legal abandonment and has little to do with common sense. All of the elements of legal abandonment must be met, or the rental premises and the personal property within it will not be deemed to be abandoned. Abandonment is very difficult to prove and is a much riskier alternative to filing an eviction action: FS 83.59 (3)c: WHEN THE TENANT HAS ABANDONED THE DWELLING UNIT. IN THE ABSENCE OF ACTUAL KNOWLEDGE OF ABANDONMENT, IT SHALL BE PRESUMED THAT THE TENANT HAS ABANDONED THE DWELLING UNIT IF HE OR SHE IS ABSENT FROM THE PREMISES FOR A PERIOD OF TIME EQUAL TO ONE-HALF THE TIME FOR PERIODIC RENTAL PAYMENTS. HOWEVER, THIS PRESUMPTION DOES NOT APPLY IF THE RENT IS CURRENT OR THE TENANT HAS NOTIFIED THE LANDLORD, IN WRITING, OF AN INTENDED ABSENCE; OR
(D) WHEN THE LAST REMAINING TENANT OF A DWELLING UNIT IS DECEASED, PERSONAL PROPERTY REMAINS ON THE PREMISES, RENT IS UNPAID, AT LEAST 60 DAYS HAVE ELAPSED FOLLOWING THE DATE OF DEATH, AND THE LANDLORD HAS NOT BEEN NOTIFIED IN WRITING OF THE EXISTENCE OF A PROBATE ESTATE OR OF THE NAME AND ADDRESS OF A PERSONAL REPRESENTATIVE. THIS PARAGRAPH DOES NOT APPLY TO A DWELLING UNIT USED IN CONNECTION WITH A FEDERALLY ADMINISTERED OR REGULATED HOUSING PROGRAM, INCLUDING PROGRAMS UNDER S. 202, S. 221(D)(3) AND (4), S. 236, OR S. 8 OF THE NATIONAL HOUSING ACT, AS AMENDED.
Self- Help and personal property
It might be tempting for a property manager unaware of Florida law to dispose of a resident's personal property left in community common areas, justifying this action to counter the resident's lease violation. Taking such action may be even more tempting in order to avoid the imposition of fines from code enforcement due the resident's conduct. If the property manager throws out personal property left in community common areas, that will likely constitute a prohibited practice. The landlord in that situation should serve the resident with a proper Seven Day Notice of Noncompliance with Opportunity to Cure, or seek injunctive relief in extreme cases.
Courts may look beyond the literal reading of the statute
If you look very closely at the prohibited practices statute, you will not find any exemptions because the prohibited practice occurred unintentionally or mistakenly by the landlord. A judge can and will often tell a landlord who committed a prohibited practice by accident that the statute requires the judge to award penalties to the resident. However, in some instances when there has been a utility interruption caused by the landlord, judges may be more willing to shield the landlord from prohibited practice liability if there was no motive to drive out the resident from their apartment home. In making those decisions, judges focus on established Florida case law, which authorizes a judge to look beyond the literal statutory language when that language leads to absurd results which do not conform to the intentions of the legislators who created the law. Those judges then focus on the legislative history behind the prohibited practices statute, and will focus on legislative staff analysis and summaries. A Florida court has ruled in one instance when a property staff member mistakenly failed to pay the electric bill and power was shut off, that the utility interruption was not a prohibited practice, and the resident was only entitled to actual damages. In addition, a Florida District Court of Appeals decision held that the legislature did not intend to penalize under the prohibited practices statute landlords who temporarily interrupt utilities in connection with the performance of maintenance in connection with a condominium conversion, as the activity was not self-help related conduct. While it is perfectly proper for a judge to look beyond the meaning of a statute, it is also reasonable for a judge to construe the statute strictly. Therefore, a landlord cannot assume immunity from prohibited practice penalties if the power or some other utility is turned off by mistake.
The penalties for committing a prohibited practice
Florida Statute 83.57 (6) authorizes the resident to receive THE GREATER OF three months' rent or actual and consequential damages if the landlord commits a prohibited practice. The landlord is also liable to the resident for attorney's fees. Repeated violations by the landlord will entitle the resident to separate awards. For example, if in the span of a week, four separate prohibited practices occurred, then the landlord may be liable to the resident for a minimum amount of one year's rent: a court can impose the three month penalty four times. Also, the length of the remaining lease term is not relevant. For example, if there is only one week left before the lease expiration date and the landlord commits a prohibited practice, the liability to the resident will be the same as if there was 11 months left on the lease term.
Remedies for the resident not exclusive
It should be noted that even if the resident has sued the landlord under the prohibited practices statute, the resident is free to also sue the landlord under all other remedies available at law or equity. Those remedies include, but are not limited to, civil theft, damages related to a conversion, fair housing violations and security deposit litigation.
by Harry A. Heist Attorney at Law
Your company policy regarding maintenance requests most likely states that a resident must come to the office and fill out some sort of maintenance request form or "work order"ќ, which we will call it in this section. In a perfect world, this works fine. The a/c breaks, and the resident comes to the office and fills out a work order. A work ticket may be generated, and your maintenance tech then takes care of the problem. The real problem is that your company policy, although good in theory, may in fact hurt you, if you are put on notice by a resident of a problem, but the resident does not fill out a work order, and an issue is not addressed. Telling a judge that the resident did in fact inform you of a problem but failed to come to the office and fill out a work order will not go over well when the resident is trying to convince a judge that you knew of a problem and failed to address it. The judge will feel you had what is called "actual notice"ќ and completely ignore your company policy.
Standard Industry Procedure
Standard industry practice requires the resident to fill out a work order before any work is performed on the resident's unit, unless of course there is an emergency situation, such as a water leak or dangerous condition. This standard practice requires the resident to affirmatively take the step of putting a work order in to the office in writing before the problem is fixed. No work request, no problem fixed. There are of course legitimate reasons for this policy, as it forces the resident to take action and eliminates the possibility of something being forgotten. It also prevents a situation when a resident may claim that your maintenance staff entered the unit without notice and stole or damaged personal property. The policy makes sense, but has serious legal flaws.
Policy versus the Law
Picture the scenario when the resident sees your maintenance tech on the property and notifies him or her that the a/c is not working properly. The maintenance tech tells the resident to put in a work order at the office. The resident then ignores company policy and does not put in a work order. A few weeks go by, the resident has not paid rent, and an eviction action is filed against the resident. The case goes to court, and the resident defends his withholding of rent based upon the fact that his a/c was not working properly for 3 weeks. Your response may be that you were not even aware of the problem, as no work order was ever placed in the office. However, the problem is that your company, through the maintenance tech, received what is called "actual notice"ќ three weeks ago. When the resident told the maintenance tech of the problem, this constituted the ACTUAL notice to you of the problem. Will the judge be sympathetic to you, as the resident failed to follow company procedure? Unfortunately not. Your company was put on "ACTUAL NOTICE"ќ, whether the resident complied with your work order policy or not. Since you failed to repair the a/c, you may lose the eviction action, especially if the resident fabricates a rent withholding letter and states this was given to your office two weeks ago.
Verbal Maintenance Requests: Best practices dictate that when a resident notifies you by phone or notifies your maintenance tech while on site of a repair need, that you or your maintenance tech take note of the request on the pad or smartphone that should be carried around at all times, text message the office with the work order, or go to the office and actually write up a work order at that time. After the work order is written up by you or the maintenance tech, a proper mutually agreeable time should be coordinated with the resident to gain access to the unit for the repair and notice given to the resident in writing of the time that maintenance will be accessing the unit.
One of the reasons for your company policy of requiring the resident to come to the office to place a work order is to avoid a situation when the resident claims that you entered their unit without permission. This is an extremely valid reason for the policy, BUT you must consider the "actual notice"ќ that is being given to you through the conversation you, a staff member or maintenance tech had with the resident. Unless it is an emergency situation, repairs should still never be performed without notice to the resident, so stick to your company policy regarding notice to the resident and coordinating access, but possibly reevaluate your current policy regarding not taking the affirmative act of preparing a work order for the resident. A PROACTIVE manager, staff member or maintenance tech will never ignore a maintenance request simply because of "company policy"ќ.
by Harry A. Heist Attorney at Law
Many attorneys communicate through letter writing, as you receive the typical, 3-page, scathing letter about how you unfairly treated a former or current resident, overcharged that resident or improperly retained the security deposit. Other attorneys will pick up the phone and attempt to speak with you directly. In either case, your initial instinct will be either to respond to the letter or speak with the attorney, but this is not the proper way to go, and can result in serious problems for your company. Sometimes you are given a "deadline9quot;ќ in these letters or calls, and you panic and respond hastily. A property manager needs to remember to never respond to the resident or former resident's attorney, or if you do respond, do so in an extremely limited fashion. Once an attorney is informed that your company is represented by an attorney, the rules regulating the Florida Bar prohibit the attorney from making any further contact with you or discussing any resident issues any further. Unfortunately, that does not stop many attorneys from taking liberties, which they may deny at a later time.
Phone calls - If you receive a call from an attorney or a person purporting to be an attorney, your response should be to inform the caller that you have an attorney who currently represents your company or property, and company policy is to not speak to attorneys regarding a resident. Often the attorney calling is simply trying to mediate a situation or help out a friend or client represented in an unrelated issue, but any information that the attorney gains from the phone conversation with you may lead to an escalation of the issue. A common ploy is for an attorney to be extremely nice on the phone and lull you into giving out facts of the situation or twisting your words. Politely inform the attorney of the name, number and email address of your company attorney. If possible, get the email address of the attorney calling you, and relay your attorney's information by email.
Written or email correspondence - If you receive a letter or email from an attorney, do not respond by trying to prove your case or refute what the attorney may be saying in the letter by writing a letter back, or by calling the attorney and speaking about the matter as discussed above. Immediately forward the correspondence to your regional manager and your attorney. If you are permitted by company policy to respond at all, your response should be as simple as, "We have received your written correspondence dated _____ regarding your client John Smith and have forwarded this correspondence to our attorney (insert name) or my regional manager."ќ
Deadlines by attorneys - Often an attorney will place a deadline by which you need to respond in a letter, putting fear into the manager and resulting in the manager hastily responding as if the deadline has real legal significance. In most cases it means nothing, BUT the deadline can be a problem when it prompts a hasty reaction, or on the flip side, when the letter is completely ignored. One of the methods an attorney will use to try to enhance the attorney's position in a legal dispute is to write a letter which states what the resident's course of action will be, and if the attorney does not hear back from you by a fixed date, he will assume that you are in agreement with that course of action. For example, a letter from an attorney may state that his client is requesting to break a lease at a certain date or withhold rent for a necessary repair, and if he does not "hear back from you"ќ by a fixed date or within a certain number of days, it will be "assumed9quot;ќ that you are in agreement with the resident's proposed course of action. However, you may not be in agreement at all and may decide to ignore the letter. This can be used against you later, when a judge may ask why there was no response to the letter, and possibly consider your failure to respond as "implicit agreement"ќ.
Debt Dispute letters - After a resident vacates, if there are monies owed that exceed the security deposit which is claimed, the debt will usually be sent within a set time period to a collection agency, or sometimes to the in-house collection departments of larger companies. If you receive a letter from an attorney or resident disputing the debt, it is crucial that if the letter demands verification of the debt, it is responded to and/or if it simply disputes the debt, the dispute must be reported to the collection agency or in-house collection as a "disputed debt"ќ and it will be classified as such from that point forward. Failure to properly take action with a disputed debt letter could result in the debt being uncollectible, or your company charged with violation of federal or state debt collection laws.
Best Practices: Take any attorney correspondence or resident correspondence threatening legal action, disputing a debt or referencing the fact that the resident has an attorney seriously. The sooner a matter can be dealt with, the sooner it may go away or be resolved, rather than result in unnecessary legal action. Completely ignoring a letter from an attorney, no matter how baseless the letter appears, is never a good idea. Take a letter or email extremely seriously if the letter states the intentions of the resident and further states that if you do not respond, it will be assumed that you have agreed with the resident's intended action. The next communication you may receive may be in the form of a lawsuit, and this is a result you want to avoid whenever possible.