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HEIST, WEISSE & WOLK LEGAL NEWSLETTER

Vol. 13 Issue 1


MARK YOUR CALENDARS NOW!

The two main events for the Florida Property Manager are the Florida Apartment Association Education Conference and Trade Show held this year at the historic Boca Raton Resort and Club on October 5-7, 2016.  Register here now. If you manage single family homes, duplexes and the like, the Florida Chapter of the National Association of Residential Property Managers (NARPM)  6th Annual Conference will be at the Westin Tampa Harbour Island  on September 21 – September 23. Register now. If you are serious about your profession, you WILL be there!  Expect education, networking, tradeshows and fun with friends.

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COMMUNICATING BY EMAIL

Florida law does not address email yet as it pertains to landlord/tenant law or notices.  Can you serve a 3-day notice by email? Can a resident serve you with a notice they are vacating by email? Can you send a Notice of Non-renewal by email?  The Residential Landlord/Tenant Act does not expressly allow for this method of service concerning statutory notices.    While there is a recent court case in which one judge felt that email and a confirmation was sufficient, we recommend using email and texting if permission is granted, BUT always using the standard old-fashioned way of written mailed notice, notice on the door, hand-delivered notice, or whatever the lease or the law requires based on the situation. Always know how a notice needs to be served, as not all notices can or should be served the same way. Use email as a back-up, and if the resident or your owner responds, print the email out and save it, as the response to your email and the chain of emails in your hand can help you prove that someone did indeed get the notice.

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RAISING RENT

One of the most common inquiries by clients now has to do with   raising rent.  When a lease is expiring or has expired, there is no clear right to unilaterally raise the rent, even with significant advance notice, although some judges will enforce the unilateral rent increase.  If the current lease does not have a clause regarding a higher rent amount upon renewal or the tenancy becoming month to month, your best and clear leverage is to terminate or non-renew the existing tenancy if the resident is not willing to agree to pay a higher rent amount.   If the resident agrees to pay higher rent, there should be some writing to reflect this.   One simple form can accomplish this. The form is a combination of an offer to renew, a deadline for response, and if the resident does not renew the lease or sign a month to month agreement, the resident is non-renewed and must vacate.  Make sure the form that you use accomplishes everything that is necessary, or you could be stuck with a resident who fails to vacate, as that resident has not been properly non-renewed.   The resident will NOT have to pay the higher rent amount that you have in mind, and you may have missed even another deadline, which will allow the resident to stay for another one or two months at the lower rent amount because you failed to properly deal with the situation. Non-renewing a resident is governed by the lease, and many leases may have a 30 or 60-day notice requirement coinciding with the lease expiration date. Email us for the proper form, as we have multiple ones that fit a variety of situations, and we want you to do this correctly.

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LEAD BASED PAINT AND RRP RULES

Are you still in denial? Do you know that if you get audited by the Environmental Protection Agency (EPA), you can get into massive trouble for allowing maintenance staff, handymen and vendors to do certain work on your pre-1978 property if they do not have their Lead Based Paint Renovation, Repair and Painting (RRP) certification or their 5 year recertification refresher course?  It is a one day class that must be taken, and is usually costs under $300 and far less for the online version. Failure to comply can result in some serious consequences.   Ask anyone working on your pre-1978 properties to provide you with proof that they have their certification or recertification, and if they cannot provide this documentation, you must tell them that they cannot perform certain tasks on the pre-1978 units.  Click here for some specific info from the EPA on this and the certification and recertification classes that are occurring all over Florida and online.

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HOLDING OFF ON AN EVICTION

No one really wants to file an eviction.  Well maybe sometimes you do, but it really is to be avoided if possible. The key is to not wait too long or buy into the plethora of excuses from the resident.  The classic this time of year is, “I am waiting for my IRS refund”: the same refund that never comes, is seized due to a student loan, eaten up by the ACA penalty or is spent the moment the resident receives it. Avoid holding off too long. In a strong market like now, you will be able to fill the unit fast. If working for an individual property owner, this owner expects you to collect the rent and can hold you liable if you hold off too long without owner knowledge and permission when the resident fails to come through. Finally, if you are a multi-family manager, please don’t tell your regional a case has been filed when you have not sent it yet to the attorney. Your regionals sometimes will check up on you, and you could lose your job!

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NONCOMPLIANCES AND DELAYS

Your resident has been causing disturbances or has an unauthorized occupant, and this has been going on for a long time now. What? Long time? Did you serve a Seven Day Notice of Noncompliance with Opportunity to Cure?  No. You talked with the resident or sent a legally insufficient “violation notice” or company drafted “warning”.  A Seven Day Notice of Noncompliance with Opportunity to Cure is the LEGAL way to deal with most noncompliances.   Don’t avoid serving the notice because it looks “mean”. It is simply a warning, a legally recognized and required warning. It requires the resident to stop doing something that is being done or start doing something that is required. Failure to send out a Seven Day Notice of Noncompliance with Opportunity to Cure will result in delays, and you may lose good residents over it and have to start from scratch. Curable Noncompliance?  Serve a properly prepared Seven Day Notice to Cure immediately. We prepare all of them for free for our clients. Just click here.   

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FRAUDULENT MODIFICATION OF DOCUMENTS

In the “old days”, most people had the free Adobe PDF reader only. It came with most computers or could be downloaded. Most people in the past could only READ a PDF unless they had the more expensive purchased professional version software. Today things have changed, and many people have software that allows them to modify a PDF just like any WORD document. You email someone a document, the recipient signs it and sends it back. Little did you know, that person modified the document before signing and sending it back to you, and you end up signing it. NOW you have a modified document that the resident can hold you to. It was a trick that you missed.  Anytime you let a document out of your control, make sure it matches exactly what you sent before you sign the document. This is a growing and very serious problem. Take the time to carefully match your original with the document signed by the resident before you put a pen to that document.

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THE FOREIGN OWNER – TAX RAMIFICATIONS

The US is becoming extremely popular for investments by the foreign owner. In fact some of our clients have a niche market dealing primarily with foreigners. Others only deal with the foreign owner once in a while.  No matter how many foreign owners with whom you deal, you must make sure that you are complying with applicable IRS laws, and you cannot depend upon the foreign owner when that owner indicates, “It is all taken care of”.  You must be sure that the proper forms have been filed, or you could be on the hook for a massive amount of money and have to pay IRS penalties, fines and remit money to the IRS that you already paid your foreign owner.  While there are many challenges with foreign owners, the IRS issues are the most important and must be left to the professionals.  Click here for an article by Brent Green, a CPA with Nonresident Tax Advisors, a firm that represents hundreds of property managers and helps them keep in compliance. Never mess with the IRS.

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WHEN THE PROBLEM RESIDENT WANTS TO VACATE

You have a problem resident. A big problem. The resident violates the lease in 10 different ways. There is an alleged mold problem.  The resident had a recent break-in. The resident threatens all kinds of things. An arrest occurs, and the resident has an attorney. The resident disparages your property and begins a social media smear campaign. You want this person out so bad you could scream, and then the resident agrees to vacate.  Then YOU want to charge the resident a penalty for vacating?  An improper notice fee? PLEASE use some common sense.  Be glad this person is willing to go, and don’t charge any penalties or fees. Let this resident OUT, and then buy a pizza to celebrate. Antagonizing an already irate resident will cost you time, money, your reputation and could result in a completely unnecessary, expensive lawsuit. Property management is a business. Act like a prudent businessperson, and you will succeed.

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IT’S ALL ABOUT EXPECTATIONS

The resident has expectations, the property owner has expectations, and the property manager has expectations. Most problems we deal with result from these expectations not matching. Taking the time to educate all parties and getting on the proverbial “same page” can result in less stress and of course minimize legal disputes. Never assume that things are clear or agreed upon. Any time you deviate from the norm, put this in writing. Many of our clients use an owner’s handbook, a resident’s handbook or provide simple written explanations to understand rules and regulations for the residents. No silly legalese, just the facts.  The clearer you are, the better.

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DESTROYING THE EVIDENCE -  HAPPENS ALL THE TIME

Many companies have excellent maintenance staff. Before you even get to work, they have cleaned up from the massive blowout the resident had the night before. The garbage, broken bottles, cigarette butts and unmentionable things left in the breezeway all have been neatly cleaned up and taken to the compactor. You come into work with 10 voicemails about a party the night before. A resident vacates and within hours, holes are patched and painted, the carpeting is cleaned, walls are touched up and piles of abandoned property removed.  What occurred? Your maintenance tech destroyed crucial evidence that may be needed for an eviction against a current resident or a security deposit claim concerning a departed resident. Every maintenance tech should be carrying around a camera and taking photos before anything is touched. It needs to be company policy and needs to be made a habit.

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THE 95/5 PERCENT ZONE

95% of almost everything you do each day is the same. Collect rent, serve notices, take service calls, and get repairs accomplished. 5% is the “weird” stuff. The tenant death, fire, mold, possible abandonment, crime on the property, the unusual request, the extension, the favor, the “exception” to the rule.  95% of all the problems we deal with occur when you are in the 5% zone. The key is to know when you are in that danger zone and STOP. Don’t do anything. Pick up that phone, send an email, but just STOP. Get some free advice early before you possibly make a huge mistake. That is what we are here for. Free advice.  Come to us too late after you make a huge mistake, we won’t help you, and you will have to pay the big bucks to another law firm! Sounds mean, right? Yes. Sometimes we have to be mean.  It is in your control.

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ALLOWING A RESIDENT TO HIRE VENDORS OR DO WORK ON THE PREMISES

Every so often, a property manager will allow the resident to hire a vendor to do something on the property with the manager’s or owner’s permission.  This is a dreadful mistake. If the vendor is not paid, the vendor may try to hold the owner of the property liable for payment and can go so far as to place a lien, rightful or not, on the property. Try to avoid allowing residents to do this at all costs. All work and improvements need to be done through the property manager. Never let your guard down and allow a resident to do anything on the property or hire any vendor. You lose control over the situation, and this can also complicate an eviction proceeding, as the resident often feels entitled to a rent offset.  If a resident hires someone or makes a repair without permission, speak with your attorney. You may allow it that one time, but you must stop it from ever happening again, as it will spiral out of control fast.

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HOMEWORK FOR YOU NOW – READ OUR ARTICLES

Our website has literally hundreds of pages of legal articles, forms and notices. Take the time to read 3 a day and see how your knowledge of practical property management law increases dramatically. We have not indexed everything the way we want yet but here is a start to keep you busy. Click here for all 11 years of articles and click here for a somewhat organized listing of about 8 years of articles.  Your first link has it all.

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Law Offices of Heist, Weisse & Wolk, P.A.

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