A Flea in One’s Ear

A blog for Landlords and Property Managers by probity Realty LLC

We believe our #1 job, as property managers, is to protect our owners and ourselves from liability exposure. This Property Management Blog will mainly consist of easy, non-burdening ways we can reduce our liability exposure. Whether you are working with probity Realty LLC , another property manager  / property management company or managing a home yourself, we hope this helps! 
probity Realty LLC is not an attorney or a law firm. Property Managers and Landlords should consult an attorney before altering legal forms or implementing any suggestions found in this blog/article/newsletter
Please contact us or leave a reply below if you have any comments, questions and/or would like more information on a particular subject.

I. Battery-Powered Smoke Alarms

addresses smoke alarms and a statute that went into effect January 1, 2015

This excerpt from Attorney at Law, Harry Heist, explains..

The new law is quite simple. Any time a battery powered smoke detector/alarm is replaced, if it is defective, or has exceeded the 10 years lifespan, (dates are usually on the back) the replacement must be with the type that has the 10-year, non-removable, non-replaceable battery. Presumably these batteries will last 10 years and cannot be easily tampered with by the resident once they are activated. They are a bit more expensive than the older type, but a few dollars is all it takes. Buying in bulk as well will save even more money.
Here is the the actual Florida Statute…

Florida Statutes Section 553.883 Smoke alarms in one-family and two-family dwellings and townhomes.—One-family and two-family dwellings and townhomes undergoing a repair, or a level 1 alteration as defined in the Florida Building Code, may use smoke alarms powered by 10-year nonremovable, nonreplaceable batteries in lieu of retrofitting such dwelling with smoke alarms powered by the dwelling’s electrical system. Effective January 1, 2015, a battery-powered smoke alarm that is newly installed or replaces an existing battery-powered smoke alarm must be powered by a nonremovable, nonreplaceable battery that powers the alarm for at least 10 years. The battery requirements of this section do not apply to a fire alarm, smoke detector, smoke alarm, or ancillary component that is electronically connected as a part of a centrally monitored or supervised alarm system.

 As Harry Heist explained, quite simple. We would suggest that you have your smoke alarms inspected and to note expiration dates or better yet, go ahead and replace with the type that is powered by 10-year nonremovable, nonreplaceable batteries. This may be something you will want to add to inspection reports prior to tenants taking occupancy…smoke alarm location, type, expiration date and picture. This applies only to battery-powered smoke alarms.

II. Lawn Maintenance

addresses who is responsible for maintaining the lawn, tenant or landlord?

This is a popular subject and always one of the first questions we, as property managers, are asked…who’s responsible for the lawn maintenance, Tenant or Landlord? 

As Property Managers in the beautiful Sunshine State, where everything grows year round, we strongly recommend including lawn maintenance in the monthly rent and suggest adjusting the rental listing rate accordingly. Most of the home we manage are within communities that have HOA’s (Homeowners Associations) and the owner of the property, not the tenant, receive the threatening letters, fines, etc. that an HOA can impose due to not maintaining the lawn according to the rules and regulations. Not to mention, a lot tenants are from out of state and do not know where to start when it comes to maintaining a Florida yard and a misstep in lawn maintenance can end up costing thousands in new sod; which brings us to the next question…

what is included in “lawn maintenance”?

If you, as the landlord, are responsible for the lawn maintenance this should include everything…mowing, edging, blowing, trimming of shrubs, weed control in beds and lawn, fertilization/extermination, mulching and tree trimming. If you decide to put this responsibility on the tenant then you should clearly define your expectations. We would suggest and our company will not manage a property if you require a tenant to use chemicals/pest control of any kind in treating the lawn or require the tenant to trim trees as these items can significantly increase the exposure of the landlord and property manager to liability. If you are going to make the tenant responsible we suggest, as mentioned above, that lawn maintenance and expectations are clearly defined, i.e. Tenant shall be responsible for maintaining the lawn which shall include mowing, trimming, edging, blowing, keeping plant beds clean of weeds, and trimming shrubs. Again, fertilization, extermination, tree trimming should be the responsibility of the owner. 

You must also consider the burden of proof which always falls on the Owner/Landlord. What was the condition of the lawn prior to occupancy? Was the tenant at fault? Were there any severe weather conditions over the course of the lease? Were there increased watering restrictions over the course of the lease? What is normal wear and tear? These are all things to consider before getting into a lease. Also remember that in landlord/tenant litigation, the prevailing party collects his attorney’s fees from the losing party. 9 times out of 10 a settlement is often the landlord’s best solution. Should you, as the landlord, win you must consider what the court is going to allow for damages. An excerpt from Lawns and Landscaping by Michael Geo. F. Davis, Attorney at Law…

Assuming the court finds the resident liable for the damage, the next issue is the amount of damage. The damages may not be the full replacement costs of resodding the yard or replacing the landscaping. Like all other damage claims, the landlord must use the least expensive, practical method to replace or repair, replace the minimum area required, and recover only his unused cost of the lawn and landscaping. An expert will need to testify as to these matters. Depending on the geographic location, soil and a host of other factors, lawns and landscaping do have an average replacement cycle. If the resident has intentionally or negligently damaged trees resulting in their loss, the resident is liable for waste. The measure of damages for lost trees is the difference in the value of the premises before the resident rented them and after the resident vacated. The landlord will need expert testimony about market value if attempting to prove that the value of the property has declined, which resulted in a loss of future market rent. 

Once again, we hope this information has been helpful and invite your comments, questions and feedback. The information provided may not be what you want to hear hence the title of our blog…A Flea in One’s Ear!

III. Non Payment of Rent Notices/The So-Called 3-Day Notice

addresses the different types of Non Payment of Rent Notices; most of us are familiar with the standard, 3-Day Notice

 A Tenant has not paid rent; typically a 3-Day Notice, which notifies the tenants that they are to pay rent within three days, not including Saturdays, Sundays or legal holidays (make sure you have a complete list of legal holidays for the given year), is issued/posted. This Notice can be hand-delivered, posted to the door of the property or mailed to the property. Simple enough, right? Not so fast!

Let’s start with hand-delivery or posting to the front door of the property as this is about the only situation where you can use a 3-Day Notice! And even this comes with a set of rules…a 3-Day Notice can be used when hand-delivered or posted on the front door assuming the property is in the same county as the address for the rent payment, the lease does not require more notice and the tenant is not forced to pay rent by mail to a physical address or a post office box.

If tenants are required to pay rent by mail and the address on the notice is not an address where the tenant is to physically come, but rather the tenant is expected to mail the rent to that address, the law requires that 5 additional days are added to the expiration date of the Notice. Now your 3-Day Notice is an 8-Day Notice and should be labeled as such. You cannot label a Notice a 3-Day Notice and set an expiration date of 8 days. According to our friend Harry A. Heist, Attorney at Law, “Calling it a 3-day notice when the expiration day is really 8 business days away will render it ambiguous and potentially defective.”

Let’s assume we mailed the 3-Day Notice. The law now gives the tenant 5 days to receive the Notice and an additional 5 days to mail the rent to you. Now you have a 13-Day Notice not including Saturdays, Sundays and Legal Holidays! Again, you cannot label this a 3-Day Notice.

The payment office is in a different county than the rental property…this is a little crazy as Florida Statute does not address this, so once again we’ll hand the reigns over to Harry A. Heist, Attorney at Law,

Florida Statutes do not address this issue, but case law is split on this issue. We all know that law is created by statutes and by cases decided by judges. Some case law has held that if the address for the resident to pay rent is in another county different than the county where the premises are located, the resident is to be given 5 additional days for mailing time. While we often don’t agree with this line of reasoning, we are not judges, and we have to go by what the judges will say. While not all judges even know about how some other judges have ruled on this issue, sometimes an attorney defending an eviction action will show a judge a case from a county far away in Florida, and that judge will then agree with the holding of the case and rule in accordance with that case. Anything can and does happen in county court, so it is always better to be safe than sorry. If your property is in another county, no matter how close that other county line may be to your office, if you serve a notice, use an 8-day notice. 

Apparently there is nothing standard about the 3-Day Notice!

IV. Hurricanes/Tropical Storms

addresses how the law and a lease addresses (or doesn’t) damages and uninhabitable

It’s here again…Summer Break, the heat and Hurricane Season (officially June 1 – Nov. 30)! What happens should these natural disasters strike and wreak their havoc?

Attorney at Law, Cathy L. Lucrezi…

Damaged and uninhabitable. If rental premises are damaged in a way that renders them uninhabitable, the tenant is not liable for rent for the period that the premises are uninhabitable. The owner is not obligated to pay for a hotel or move the tenant to another unit (unless the lease specifically says he should). Repairs should be completed as quickly as is reasonable. This is often difficult in a post-hurricane period, given the great demand on services. Documentation is key to show that you are making best efforts to get the premises repaired.

Damaged but still habitable. If the premises are damaged but not destroyed, it is wise to work out some “credit” to the rent until repairs are done. How much of a credit depends on the facts of the particular situation. Alternatively, a wise landlord will have a clause in the lease that allows the landlord the right to terminate the tenancy in the event the premises are “damaged”. The tenant cannot refuse to pay rent. However, some compromise should be reached. If you served a three day notice while significant repairs were ongoing, and then filed an eviction, it is very likely that a judge would consider the damage to be a “diminution” in value. That’s enough to mess up an otherwise good eviction case. When repairs are completed, you will be on solid footing to demand the full rent.

Destruction of premises. If the rental premises are destroyed, the owner might wish to terminate the lease rather than do repairs. Unfortunately, the option to do this is limited. The Florida statute does not entitle the landlord to terminate the tenancy under these conditions. The tenant can do so, but not the landlord. The landlord can terminate the tenancy due to destruction only if the lease says he can. This language is usually found in a paragraph titled “Casualty” or “Maintenance”. If the lease does not contain language that permits the landlord to terminate the tenancy, yet repairs are out of the question, the owner may want to “invite” the tenant to terminate the tenancy. The landlord would suggest to the tenant that the tenant could give notice to vacate and be released from the lease. 

Data and documentation. Sure, everyone knows to take photos of damage after the hurricane, but do you have photos of what the place looks like now? It is sometimes hard to fully appreciate an “after” picture without having a “before”. You should record and document the condition of the rental premises now, before the winds blow.”

As Cathy L. Lucrezi, Attorney at Law, suggests this is another reason to make sure you have done your due diligence…make sure you have a detailed walk through report to include pictures; this is your record of the property prior to the damages. Our Probity PMG move-in/walk through reports can be as long as 30+ pages!

In addition, our attorney-drafted leases are also very clear, giving the Landlord the right to terminate the tenancy with proper notice…

CONDEMNATION, DAMAGE TO PREMISES, ACTS OF GOD and TERMINATION: If for any reason the premises are condemned by any governmental authority, destroyed, rendered uninhabitable, rendered dangerous to persons or property, and/or damaged through fire, water, smoke, wind, flood, act of God, nature or accident, or, if it becomes necessary, in the opinion of LANDLORD or its agent, that TENANT must vacate the premises in order for repairs to the premises to be undertaken, this lease shall, at LANDLORD’S option and upon 7 days written notice to TENANT, cease and shall terminate, TENANT agrees to and shall vacate and TENANT, if not in default of the lease, shall owe no further rent due under the terms of the lease. In such case, TENANT hereby waives all claims against LANDLORD for any damages suffered by such condemnation, damage, destruction or lease termination. TENANT agrees that in the event there are hurricane or storm shutters on the premises, TENANT will install same if there is a hurricane or tropical storm watch or warning in effect and/or at the request of the property manager or owner. If TENANT is unable to perform this task for any reason, TENANT agrees to notify property manager or owner as soon as any storm watch or warning is placed into effect. 

This is an excellent time for us to remind you to make sure that you have disclosed to your insurance company that the property is a rental and occupied by tenants! If you have not done this, please stop what you are doing and address immediately.

Please contact us or leave a reply below if you have any comments, questions and/or would like more information on a particular subject.

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