Posted by PRO
Wed, 21 Apr 2010 17:38:00 GMT
Approved lease forms available in Florida Realtors products (4-21-2010)
ORLANDO, Fla. – April 21, 2010 – The Florida Supreme Court approved revisions to two leases and several property management forms last week, as announced in Florida Realtors News http://www.floridarealtors.org/NewsAndEvents/article.cfm?id=237983. The changes were effective immediately.
Since Realtors had to immediately start using the new forms, Florida Realtors deleted the outdated forms from the products available to state Realtors and substituted the approved forms issued by the Supreme Court. These versions of the forms include strike-outs (deleted wording with a line through it) and underlines (added wording underlined to show it is new).
Effective today, however, Forms Online Basic has the final version of the forms without strike-outs and underlines. In addition, the companies that host Florida Realtors’ other form software – Forms Online Gold, Form Simplicity and TransactionDesk – were supplied with the new forms.
It will now take some technological work to enable the forms to be filled out online. Florida Realtors expects the groundwork to be done shortly, and the final, fully functional versions should be an active part of the form software programs no later than Tuesday, April 27. Until the forms become fully interactive, the cleaner version of the contract – without strike-outs and underlines – will be available and printable through Forms Online Gold, Form Simplicity and TransactionDesk; but Realtors cannot fill them out online.
It should also be noted that the Supreme Court added a requirement to attach Chapter 83, Part II, Florida Residential Landlord and Tenant Act to the two newly revised leases – Residential Lease for Single Family Home or Duplex (for a term not to exceed one year) and Residential Lease for Apartment or Unit in Multi-Family Rental Housing (other than a duplex) including a Mobile Home, Condominium, or Cooperative (for a term not to exceed one year). Because use of the attachment is now mandatory, it will automatically be included and print with the two affected lease forms. This increases the total length of each form.
Questions? Call the Florida Realtors Legal Hotline at (407) 438-1409. It’s a free call for members except for long distance phone charges, if any.
© 2010 Florida Realtors®
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Posted by PRO
Wed, 14 Apr 2010 17:29:00 GMT
One of the biggest mistakes a landlord makes often occurs at the time the tenant moves into the unit, and this mistake has major ramifications when the tenant moves out. The condition of a rental unit must be documented when a tenant moves in. This is crucial, as when the tenant moves out and there are damages found in the unit, the landlord needs to prove that the damages were not pre-existing and were indeed caused by the tenant. Tenants routinely say, “It was like that when I moved in”, and often, “I left it better than when I moved in”. Every landlord has heard these comments made by the tenant. When the tenant makes these allegations, the landlord must be able to prove that the damages did not exist at the time the tenant moved in to prevail. How does the landlord do this? A really thorough landlord will have taken pictures and maybe even a video tape of the unit prior to or at the time of move in. While this may seem excessive to some landlords, it is indeed the best approach, but unfortunately, we all know this is only done by a small percentage of landlords. The usual method of documenting the move in condition is the Move In Inspection Form or Condition Report, and for this article we will call it the Condition Report. A thorough landlord will have a detailed Condition Report which lists just about anything inside and outside of the unit that the tenant could be responsible for or potentially damage. Now here is the big question: who completes the Condition Report? The landlord or the tenant?
The Tenant completes the Condition Report?
Probably 50% of all landlords, especially those who manage multifamily housing units, give the tenant the Condition Report and ask them to take the report, write down anything that is wrong with the unit, and get the report back to the landlord. The landlord then tells the tenant that if they don’t get the Condition Report back to the landlord, it will be assumed that there is no pre-existing damage to the unit. Sounds reasonable enough right? Wrong. It is not only the lazy way to get the unit inspected, but it can have grave legal consequences.
What will the typical Tenant do with the Condition Report
1. The Picky Tenant Some tenants will take the condition report and go over the unit with a fine tooth comb, marking down every possible little thing wrong with the unit. When you receive it back, you would think the unit was in terrible condition, and your receipt of the Condition Report from the tenant has put you on legal notice of deficiencies. All you wanted the tenant to do was mark down any cosmetic issues, but NOW you have a report from the tenant which you requested that makes your unit look awful.
2. The Wish List Tenant Some units are not perfect, but are legally sufficient to rent out. The carpet may not be perfect, and there may be cosmetic issues in the unit. No big deal to the landlord, but the “wish list” tenant uses the Condition Report to not only tell you about the damages in great detail, but expects you to deal with everything on the list. The tenant’s assumption is that you are giving them the Condition Report to fill out, so YOU will know what to fix or change. You have no intention whatsoever to replace the carpet or the countertop, but now the tenant feels you should, and by filling out the Condition Report has made the request. Now the tenant has an expectation that you are going to have the carpet cleaned again, replace the carpet or give them a new counter top.
3. The Sloppy Tenant Possibly the carpet has a couple small stains, the walls have a few scuff marks, there is a chip in the countertop and some deep knife grooves when the last tenant used the counter top to chop vegetables with his Ginsu Knives. This is how the “sloppy tenant” writes it up on the Condition Report. “Carpeting Stained”,”Marks on walls”, “Chipped Countertops” “Damaged Countertops”. This sounds reasonable to the tenant and is in fact true. Now, let us suppose when this tenant moves out that there are severely stained carpets, the walls have been marked up so badly that they must be repainted, and that the tenant has completely destroyed the countertops. You want to charge the tenant for the damage. The landlord then goes ahead and charges the tenant on the Notice of Intention to Impose Claim on Security Deposit. The departed tenant NOW responds back and says, “It was like that when I moved in! Just look at my Condition Report! I told you about these problems a year ago!” The landlord is dumbfounded, because while it was true that there was some damage to the carpets, walls and the countertop when the tenant moved in, it certainly wasn’t THAT bad. The tenant takes the landlord to court, the tenant shows the judge the Condition Report, and the landlord LOSES.
The Forgetful Tenant The tenant is in a hurry to move in and the last thing on his mind is to complete a Condition Report. He throws it into the kitchen drawer and it sits there for the next year. The landlord never receives the Condition Report. Now the tenant moves out, there are damages, and the landlord has absolutely no Condition Report to form the baseline as to the condition of the unit. The landlord charges the tenant for damages, the tenant objects, disputing the charges, and maybe the tenant claims he did indeed fill out the condition report and get it back to the landlord by giving it to your leasing agent who was fired 3 months ago. Worse yet, the dishonest tenant finds the blank Condition Report in his kitchen drawer upon move out and decides to fill in the CURRENT damages that he caused during the tenancy, keeps a copy and claims he gave you the original 2 days after he moved in! This tenant’s claim, “It was like that when I moved in,” will be hard to beat in court when you don’t have the Condition Report.
The Solution
As you can see by the examples above, giving the tenant the Condition Report is just plain wrong, silly, lazy, and the list goes on and on. The landlord should be the one who inspects the unit and fills out the Condition Report. You cannot give control over such an important aspect of property management to a person who is not skilled in or has no knowledge of inspecting a unit. The landlord knows or should know how to do this properly and will go through the unit marking down preexisting cosmetic damages. Ideally, the inspection and Condition Report will be accomplished with the tenant present, but if not, it will be done before the tenant moves into the unit along with the video taping of the unit and plenty of digital pictures. Our office has been dealing with security deposit disputes for almost 20 years. Many of our clients, especially the large multifamily ones, insist on allowing the tenant to complete the Condition Report. We can assure you that when our client performs the move in inspection and completes the Condition Report, the chance of a security deposit dispute, or in the worse case scenario, losing a dispute in court, is diminished greatly. It is simply the right way to do YOUR job.
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Posted by PRO
Wed, 14 Apr 2010 17:09:00 GMT
You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the tenant has changed the locks without your permission and has failed to give you the keys. In another situation, the tenant has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the tenant refuses to let your staff in to make a repair, saying it is not a convenient time. Your tenant requests a repair to be made, you call to schedule the repair, and the tenant states that you can only send the maintenance staff in if the tenant is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the tenant is playing the “denial of access game”
The law on access
Florida law specifically addresses access rights by the landlord, and your lease agreement may further address the issue.
83.53 Landlord’s access to dwelling unit.–
(1) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.
(2) The landlord may enter the dwelling unit at any time for the protection or preservation of the premises. The landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The landlord may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:
(a) With the consent of the tenant;
(b) In case of emergency;
(c) When the tenant unreasonably withholds consent; or
(d) If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the landlord of an intended absence, then the landlord may enter only with the consent of the tenant or for the protection or preservation of the premises.
The tenant lock change
If the tenant changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the tenant is forbidden to change the locks. The tenant is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the tenant has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized tenant lock change really is the easy case and does not pose too many problems if the tenant complies and gives you a key. There are many reasons why a tenant may have changed the locks, and as long as the landlord has access, this is usually not a real problem.
The Denial of Access “Game”
If your tenant has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Tenants will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the tenant ends up breaking the lease or withholding the rent with an eviction ensuing, the tenant may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The tenant will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the tenant was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the tenant, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.
Repair requests and strategy
The moment a repair request is made by the tenant, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the tenant? Yes, but it is a bit risky if the tenant did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the tenant is surprised. If you go to the unit without any notice and the tenant is home, the tenant may deny you access, and it could be looked on as legitimate by a judge. Your lease or resident handbook should clearly lay out the procedures for repair requests, but as we know, many landlords fail to do so.
Once the repair request is made, if it is something that needs immediate attention, the tenant should be called and told that you or your maintenance staff will be out within a specific time window. The tenant may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the tenant. At this point in time, the tenant may begin to deny you access. If the tenant insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the tenant demands that you come after normal business hours, this may be construed as a denial of access, especially if your resident handbook or lease clearly states the hours that repairs will be made. The resident may verbally agree to you coming to the premise for the repair, and upon arrival the tenant informs you that you cannot make the repair at that time. This is when you must jump into action.
The tenant refuses you access
If the tenant has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the tenant is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the tenant flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the tenant when you will be back using a written notice. If the tenant refuses access again, attempt to have the tenant sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the tenant unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the tenant a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the tenant again refuses you access, document everything all over again. If you don’t expect cooperation by the tenant, always have a witness with you to show that the tenant has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.
How far do you go?
You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the tenant’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the tenant’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a tenant who has breached the lease by complaining about repairs and vacating prior to lease end.
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