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HEIST, WEISSE & WOLK LEGAL NEWSLETTER

Vol. 12 Issue 2


BRIAN SIMMONS

The Multi-Family Housing Industry lost another great person in May.  Brian "Fish" Simmons passed away suddenly May 11, 2015. He was only 44 years old.  Growing up in West Long Branch, New Jersey, Brian moved to Florida in 2001, where he and his wife Tara opened and operated House of Floors in Sarasota and Fort Myers, tirelessly serving and going out of the way for his customers, most of whom became his friends.  Brian was dedicated to the Tri-City Apartment Association and the Southwest Florida Apartment Association and did everything possible to assist in many ways for over a decade, despite challenging health issues over the last three years.   He turned every room he entered into his captive audience and captured every moment of every day of life with unceasing energy and drive. Brian leaves behind his wife of 17 years, Tara, and their two young children, Dillon and Chloe. His loves were fishing, cooking, his family and friends. Many of us had the privilege of knowing Brian for so many years, and we will all remember and miss him.

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GOOD NEWS AND BAD NEWS – THE WEAK CASE

The rental market is the hottest in years. Good news. Evictions are on the decline, rent is increasing, and vacancies are low. Real low. If you lose a resident, you will be able to get that unit rented FAST. How is this impacting the way you deal with problem residents? You were less apt to want to evict them when times were tough. The rude tenant, the late payer, the complainer, the noisy resident, the problem children, the unauthorized occupant all are now more of a target than ever. Your tolerance and patience level is low. After all, YOU have a waiting list. The residents cause a problem, and YOU want them evicted. No more second chances. Your attorney says your case is weak, but you are not having any of it! Is the case weak? Could filing the case cause you a massive risk if you lose? While the market has changed, the law has not. Not one bit.

Click here  to see how to deal with the weak case.

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DO UNTO OTHERS AS YOU WOULD HAVE THEM DO UNTO YOU

All too often we see claims made by managers and owners against residents for what is really ordinary wear and tear. Let’s get real people. Sure, residents do absolutely destroy units sometimes.   However, this does not justify getting extremely picky and almost vindictive when it comes to ordinary wear and tear. Ask yourself how you would react to the charge, or more importantly, how a judge would react when he or she grills you to death about why you charged the resident for the damage. A judge’s attitude towards the manager or owner in an eviction is typically far more favorable than a judge’s attitude in a small claims security deposit case, in which the resident spent the time and money to sue YOU. In small claims court, you will need to prove each and every charge. If the resident gets back one dime, you could be on the hook for thousands in attorney’s fees awarded to the resident. It is a massive gamble?.

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SEND US THE LEASE!!

One of the biggest time wasters for everyone is when we get a question about the legality of something, whether something can be charged, how a notice should be served, what can be put on the 3-day notice, how to non-renew someone, etc., and NOTHING is attached to the email. In order to answer the question, we need to see the lease. Sure, we could guess for you, but that would be irresponsible on our part, and an incorrect answer based on an assumption could cost you time and money.  Attach the lease with the question, and get your answer fast and accurately.  So simple and easy.

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FIGHTING CRIME AT THE APARTMENT COMMUNITY

Marcie, one of your residents, just sent you an e-mail. She believes that she may have viewed a man selling drugs in the common area breezeway after midnight a few nights ago. You do not see anything in the lease that addresses criminal activity.  You e-mailed Jeff, the “courtesy officer”, and asked if he witnessed anything. Jeff replies by telling you that watching the breezeway is not part of his job.  Margie, another resident, marches into your office and is upset that you have not fixed the front gate, and she is worried about her safety. You have limited financial resources. Is all hope lost? What can you do to address these problems?

 

Click here  to step up and fight crime at your apartment community.

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AC FILTERS AND YOU!

So you tell the resident to change the a/c filters every three months. How special. Do they do it? Do you check? Let’s look at the reality of it all. Some of us don’t even change the air filters in our own homes when we should. Out of sight, out of mind, and who wants to lug that ladder upstairs? Failure to change the filters puts extra work on the air handler, the air handler can fail, you get a service call because it is not cooling, and now the owner wants to charge the tenant $2500 to replace a 20-year old air handler, and is blaming the resident because the a/c guy “said” this is why the air handler failed. PLEASE check air filters at inspection time, and if you are multi-family, have your maintenance tech change the filters.    

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3-DAY, 8-DAY OR 13-DAY NOTICE?

If a resident has not paid rent, you simply serve them a 3-day notice, correct? Sure, this has been drilled into our brains for years, BUT it is not always accurate. There are many factors which may necessitate a notice of DIFFERENT length be given to the resident. If you give the wrong notice, your notice may be defective, you could lose the case, or you may have to re-do the notice, wasting precious time. But it has been working for years! Yes. This may be the case until you get caught by a lawyer or judge who views the law differently.

Click here to see if you are serving the CORRECT notice.

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DID THAT NOTICE STICK?

Have you ever gone to serve a notice, the resident was not home, and you taped the notice to the door? Did it stick to the door? Sometimes it does not, and if the notice flies off the door and the resident never receives it, you could be in for a problem. Not all surfaces are the same. Often clear or tan packing tape is used, which does not adhere well to many surfaces. While you do not want to damage a door’s finish with the tape from a notice, sometimes tape like duct tape must be used. A filthy surface could defeat the adhesion of almost any tape, so bringing along some Windex and a paper towel could be in order. Test the adhesion after serving.

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LEASE EXTENSIONS, MONTH TO MONTH OR A NEW LEASE

A common shortcut used by property managers is to use a lease extension addendum instead of preparing a new lease when a resident wants more time, and everyone is in agreement. What is the correct way to go? In some cases a simple lease extension is appropriate, but in others, a new lease is the way to go. Remember a lease extension is extending an old lease which may not even comply with the law. Suppose the resident does not know how much more time they need? How is this addressed?

 

Click here to read about Lease Extension, Month to Month or the New Lease.

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TIPTOE TAPE AND TAKE OFF

Too many property managers pre-tape the notice, tiptoe up to the door, stick the notice quietly on the door and take off. Why? You don’t want a confrontation or feel weird. I understand. I am a rental property owner as well. The problem is you must follow the law. The law only allows posting on the premises IF the resident is NOT home. You have to ring that bell or knock on that door whether you like it or not. Feel that it is unsafe? Use a private process server. Need a recommendation for one?  Just email our office, and we will tell you who we use in a particular county.

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COMPUTER VIRUSES

Yes, we know this is really not about property management, but many of our clients and even our office has been hit by viruses. Multiple times.  You could have the best antivirus programs in place and the best office email policies, but if you or a staff member opens that ZIP or EXE file, you could be doomed. The Cryptolocker and variations of these ransom type viruses are alive and well.  We know it. We have been hit. Tell all your staff to NOT open ZIP or EXE files, don’t click on links when you are not 100% sure they are safe, and make sure you have backups done every single day without fail, using an off-site company where you can go back at least 10 days as a restore point if necessary. It is not a question of whether you are going to be hit, but when.

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LAST MONTH’S RENT HOT TIP

You collect a last month’s rent at the beginning of the tenancy, the lease is renewed a year later, and the last month’s rent is carried forward. Problem is that the renewed lease is for a higher rent amount. What happens in the last month of the tenancy? The resident will say they paid last month’s rent, you will say they owe more, as the rent was increased.   Make sure this is always addressed at renewal time, or you could be stuck having to accept a lower amount for the last month of the tenancy.
 

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Commercial Law and You

 

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