Using criminal history in evaluating rental applications

Tags

arrest, conviction, criminal, felony, guidelines, history, HUD, misdemeanor, rental application

Florida Realtors® reports that a single Orlando law firm has filed 48 lawsuits against Florida property managers for refusing to rent to tenants with prior felony convictions.  They are alleging that refusing to rent to tenants with a criminal history violated the fair housing act.  In 2016, HUD issued guidelines that a blanket policy of  refusing to rent to an applicant with a prior arrest, misdemeanor conviction,  or a felony conviction more than 7 years old had a disparate impact on African Americans and Hispanics according to Department of Justice statistics.  A housing provider must show that its screening policy is necessary to achieve a substantial non-discriminatory interest.  The policy cannot be speculative or hypothetical.  Evidence must exist that supports the screening policy.  The housing provider must prove through reliable evidence  that the policy serves the purpose of protecting the safety and property of the other residents.  Also that there are no  less discriminatory alternatives.

HUD examples:  length of time since the applicant’s conviction.  A good rental history since the conviction.  The circumstances surrounding the criminal conduct.

A housing provider should have a written policy calling for applicants to be evaluated on a case  by case basis.  Document the research done and results found on each applicant.   Make sure the policy is being followed and that it is not resulting in a discriminatory effect.  Make sure the policy is being applied on a consistent basis.   Review the applicants financial qualifications before checking their criminal history, so that a denial on a financial basis is not tainted by criminal history that should not have been considered.  Arrests not resulting in a conviction should not be considered and thus should not by a criteria on the application.     Blanket restrictions on certain convictions or all applicants with a criminal record will be discriminatory. Each applicant must be evaluated on a case by case basis.

Where plaintiff sued under Chapter 83 and defendants prevailed, they were entitled to attorneys fees despite finding of no landlord tenant relationship

Tags

83.48, attorneys fees, florida, LANDLORD, landlord tenant relationship, TENANT

The Plaintiff brought suit against Defendants under Chapter 83, Florida Statutes, seeking unpaid rent. At trial the Court found in the Defendants’ favor, finding that there was no landlord/tenant relationship between the parties, but also finding that if there were such a relationship it was the landlord who breached the agreement by not providing habitable premises.

Defendants moved for attorneys fee under Florida Statute §83.48, which provides in pertinent part, “[i]n any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment [. . .] has been rendered may recover reasonable attorney fees and court costs from the non-prevailing party.”

Plaintiff  argued that once the Court found that there was not a landlord/tenant relationship, the Defendants could not avail themselves of the statute in the Residential Landlord-Tenant Act providing for prevailing party attorney’s fees.  The Defendants responded that the statute does not reference a “landlord” or “tenant,” but rather a “party,” so that whenever  a party, of any characterization,  brings a lawsuit under the Residential Landlord-Tenant Act, entitlement to attorney’s fees may be triggered under §83.48, even if it is determined that the Plaintiff was not a “landlord” and the Defendants were not “tenants.”

Prior to 1983, an award of prevailing party attorney’s fees could be awarded only if the Court determined that the defendant was a “tenant.” In 1983, however, the references in the statute to “landlord” and “tenant” were deleted, and the word “party” used instead. 1983 Fla. Laws 83-151, §4. Based on the unambiguous language of the current version of the statute, the focus is whether the action was brought under chapter 83, not who is bringing the action or who is being sued. In the instant case, the Plaintiff brought the action under chapter 83. When the Legislature deleted the words “landlord” and “tenant,” and inserted the word “party,” the Legislature expressed its intention to expand the scope of the statute. Therefore, when the Defendants prevailed in the instant in this action brought under chapter 83, the possibility of an award of fees under §83.48 was triggered. See Tavares v. Villa Doral Master Ass’n, Inc., 23 Fla. L. Weekly Supp. 685b (11th Cir. App. 2015) (although evidence failed to establish a residential lease, defendant was nonetheless entitled to an award of fees under 83.48 because he was sued in an “action brought to enforce the provisions of [. . .] this part”).

When a party prevails in an action brought under the Florida Residential Landlord-Tenant Act, an award of fees is not mandatory, but rather discretionary because the Legislature used the phrase “may recover” rather than “shall recover.” McWhorter v. Consumers Alliance Corp., 14 Fla. L. Weekly Supp. 1108b (17th Cir. App. 2007) (controlling appellate authority in the 17th Circuit). See also J. Hauser, Fla. Residential Landlord-Tenant Manual §11.02[2][a][i][A] (2007). However, because of the manner in which the Plaintiff “went to the mat” in prosecuting this action for a fairly insubstantial sum, the Court believes an award of fees is warranted. See Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1032 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b]. This does not foreclose the Plaintiff’s arguing that any particular time entries sought by Defendants might be unreasonable as to substance or length of time.

WEISS, v. CORAL SQUARE REALTY, INC. Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-2400 COCE 53. April 30, 2019. Robert W. Lee, Judge. 27 Fla. L. Weekly Supp. 201a

Dismissal with prejudice where landlord’s notice of termination of HUD lease did not comply with Federal Regulations, regardless of tenant’s failure to post rent

Tags

10, 24 C.F.R. 92.253, 30, days, HUD, LANDLORD, notice, TENANT

On August 30, 2018 Landlord filed an eviction for non-payment of rent due August 1st .  The landlord issued a notice of termination of Tenancy on August 8th,  effective August 18th.  The tenant did not post the rent claimed into the court registry and defended based on defective notice.   The lease that attached to the complaint states that it is a subsidized lease pursuant to the federal agency known as Housing and Urban Development (“HUD”) and states in relevant part:

MODEL LEASE FOR SUBSIDIZED PROGRAMS

23. Termination of Tenancy:

. . .

1. Any termination of this Agreement by the Landlord must be carried out in accordance with HUD regulations, State and local law, and the terms of this Agreement.

. . .

1. If the Landlord proposes to terminate this Agreement, the Landlord agrees to give the Tenant written notice and the grounds for the proposed termination. If the Landlord is terminating this agreement for “other good cause”, the termination notice must be mailed to the Tenant and hand-delivered to the dwelling unit in the manner required by HUD at least 30 days before the date the Tenant will be required to move from the unit and in accordance with the State law requirements. Notices of proposed termination for other reasons must be given in accordance with any times frames set forth in State and local law. Any HUD required notice period may run concurrently with any notice period required by State or local law. All termination notices must:

– specify the date this Agreement will be terminated;

– state the grounds for termination with enough detail for the Tenant to prepare a defense

– advise the Tenant that he/she has 10 days within which to discuss the proposed termination of tenancy with the Landlord. The 10-day period will begin on the earlier of the date the notice was hand-delivered to the unit or the day after the date the notice is mailed. If the Tenant requests the meeting, the Landlord agrees to discuss the proposed termination with the Tenant; and

– advise the Tenant of his/her right to defend the action in court.

The notice that Plaintiff attached to its complaint was dated 08/08/2018. The notice stated in relevant part:

10 Day Notice to Vacate – Subsidized Units

Please be advised that Millennia Housing Management, Ltd., the managing agent does hereby terminate your tenancy at this property, . . .

Your tenancy shall be terminated as of 08/18/2018.

 

In accordance with HUD guidelines, Millenia Housing Management Ltd., hereby advises you that you have ten (10) calendar days following the date of this letter in which you may meet with the Site Manager to discuss the proposed termination of your lease, and all charges which are delinquent on your account.

24 C.F.R. 92.253 is a HUD regulation captioned “Tenant protections and selection”. This HUD regulation applies to the lease at issue. 24 C.F.R. 92.253(c) provides:

(c)Termination of tenancy. An owner may not terminate the tenancy or refuse to renew the lease of a tenant of rental housing assisted with HOME funds, except for serious or repeated violation of the terms and conditions of the lease; for violation of applicable Federal, State, or local law; for completion of the tenancy period for transitional housing or failure to follow any required transitional housing supportive services plan; or for other good cause. Good cause does not include an increase in the tenant’s income or refusal of the tenant to purchase the housing. To terminate or refuse to renew tenancy, the owner must serve written notice upon the tenant specifying the grounds for the action at least 30 days before the termination of tenancy.

(emphasis added)

In the instant case, the Plaintiff gave ten days written notice to the tenant that it was terminating the tenancy. The ten-day notice requirement in paragraph 23 of the lease only refers to the right to meet with the Landlord within ten days to discuss the issues related to termination of the tenancy. Paragraph 23 of the lease does not give the Landlord the right to terminate the lease on ten-days notice. Paragraph 23 of the lease provides that notice of termination must be given in accordance with HUD regulations. 24 C.F.R. 92.253 requires that prior to terminating the tenancy, the owner must give 30 days’ written notice to the tenant. Plaintiff failed to provide 30 days notice to the tenant that it was terminating the tenancy.

Defendant argued that the requirement to place funds in the registry of the court in order to defend against the action is preempted by 24 CFR 92.253. In Palma v. JPMorgan Chase Bank, 208 So. 3d 771 (Fla. 5th DCA, 2016) [41 Fla. L. Weekly D2694d], the Fifth District Court of Appeals found that when a contract incorporates HUD regulations, compliance with those regulations is mandatory. Because 24 CFR 92.253 provides conditions precedent to the termination of the tenancy, those conditions precedent were mandatory pursuant to Palma. For this reason, the Court did not reach the issue of Plaintiff’s defense to the motion to dismiss that Defendant did not place any funds in the registry of the Court. Because notice may not be retroactively cured, dismissal with prejudice was ruled appropriate.

FOREST FLA LLC v.  MONTGOMERY.  26 Fla. L. Weekly Supp. 918a.  Brevard County Court.   February 5, 2019

Miami-Dade requires associations to act on rental applications within 45 days and state the reason for any rejected application

Tags

11A-18.1, application, association, dade, miami, ordinance, rejection, rental

Miami-Dade Code of Ordinances Sec. 11A-18.1. – Required notices in connection with application to purchase or rent a dwelling.

(a)  Within fifteen (15) days after receipt of any incomplete or incorrectly completed application (or amended application) to purchase or rent a dwelling, the condominium association, homeowners’ association, or cooperative association shall provide the applicant with written notice specifically identifying any and all items in the application that need to be completed or corrected.

(b) Within forty-five (45) days after receipt of a correctly completed application, the condominium association, homeowners’ association, or cooperative association shall either reject or approve the application and shall provide the applicant with written notice of same. If the application is rejected, the written notice must state with specificity each reason for the rejection.

(c)If the condominium association, homeowners’ association, or cooperative association fails to comply with the provisions of Section 11A-18.1 (a) and (b), of this article, the Director or the Commission may send a demand letter requesting that the condominium association, homeowners’ association, or cooperative association, within ten (10) days after the date of the demand letter, provide to the applicant and the Director or the Commission a written acknowledgement of application receipt, notice of approval or rejection of the application, and notice specifying each reason for the rejection (if applicable). The failure of the condominium association, homeowners’ association, or cooperative association to timely comply with this provision may be considered in determining whether reasonable cause exists to believe the association’s decision or action was discriminatory.

(Ord. No. 14-63, § 1, 7-1-14)

Why Miami-Dade landlords should be worried about their tenants’ dogs, cats, and ferrets

Tags

cats, Code, Dogs, ferrets, fine, florida, lien, miami-dade, vaccination

The Code of Miami-Dade County. Sec. 5-6 (d)(1)  provides that  it is a code violation  to fail to timely vaccinate or re-vaccinate Dogs, Cats, and Ferrets each year and provide proof thereof to the County.  This requirement applies not only to the pet’s owner,  but to the owner of any real property where the animal is maintained. i.e. the landlord ! [Sec. 5-2 (b). Notice is not a prerequisite to enforcement [Sec. 5-6 (d)(1)].  A finding of violation by a court is punishable by a fine of up to $500 or six month’s imprisonment [Sec. 5-2(e)].   A finding of violation by Code Enforcement faces a $50 fine [Sec. 8CC-10].   An order imposing a fine constitutes a lien on all real property owned by the violator [Sec. 8CC-7].

You may want to put a clause in your lease about proof of vaccination…

Restoration of the Protecting Tenants at Foreclosure Act

Tags

foreclosure, notice, protecting tenants under foreclosure act, restore, tenants, writ of possession

CA 18-4: 

BOARD OF GOVERNORS

OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C. 20551

DIVISION OF CONSUMER
AND COMMUNITY AFFAIRS

CA 18-4
June 22, 2018

TO THE OFFICERS AND MANAGERS IN CHARGE OF CONSUMER AFFAIRS SECTIONS

SUBJECT:

Restoration of the Protecting Tenants at Foreclosure Act

Applicability to Community Banking Organizations: This guidance applies to all institutions supervised by the Federal Reserve, including those with total consolidated assets of $10 billion or less.

This letter provides background information about the recently restored Protecting Tenants at Foreclosure Act of 2009,¹ which became effective on June 23, 2018. The law protects tenants from immediate eviction by persons or entities that become owners of residential property through the foreclosure process, and extends additional protections for tenants with U.S. Department of Housing and Urban Development Section 8 vouchers. The law is self-executing; no federal agency has authority to issue regulations implementing the law or to interpret the law.

The fundamental purpose of the law is to ensure that tenants facing eviction from a foreclosed property have adequate time to find alternative housing. To that end, the law establishes a minimum time period that a tenant can remain in a foreclosed property before eviction. The law does not affect any state or local law that provides longer time periods or other additional protections for tenants.

Under the law, the immediate successor in interest at foreclosure must: (a) provide bona fide tenants with 90 days’ notice prior to eviction; and, (b) allow bona fide tenants with leases to occupy property until the end of the lease term, except the lease can be terminated on 90 days’ notice if the unit is sold to a purchaser who will occupy the property. A lease or tenancy is bona fide if the tenant is not the mortgagor or the parent, spouse, or child of the mortgagor, the lease or tenancy is the result of an arms-length transaction, and the lease or tenancy requires rent that is not substantially lower than fair market rent or that is reduced or subsidized due to a Federal, State, or local subsidy. The law does not cover tenants facing eviction in a non-foreclosed property, tenants with a fraudulent lease, tenants who enter in lease agreements after a foreclosure sale, or homeowners in foreclosure. Additionally, the law does not affect the requirements of any State or local law that provides for longer time periods or extends additional protections to tenants.

Consumer compliance examiners will employ risk-focused consumer compliance supervision principles to determine if they should include a review of compliance with the Protecting Tenants at Foreclosure Act in an examination. If compliance with this law is included in the examination scope, examiners will use the attached examination procedures to evaluate an institution’s awareness of the law, its compliance efforts, and its responsiveness to addressing implementation deficiencies.²

Reserve Banks are asked to distribute this letter to supervised institutions in their districts, consumer compliance examiners, and other appropriate supervisory staff. If you have any questions, please contact Amal Patel, Senior Supervisory Consumer Financial Services Analyst, at (202) 912-7879, or Tim Robertson, Manager, at (202) 452-2565. In addition, questions may be sent via the Board’s public website.³

 

signed by
Carol A. Evans
Associate Director
Division of Consumer
and Community Affairs

Supersedes:

CA 15-4 “Expiration of the Protecting Tenants at Foreclosure Act” (June 10, 2015)

Attachments:

Federal Reserve Consumer Compliance Examination Procedures for the “Protecting Tenants at Foreclosure Act” (PDF)

Cross References:

SR 12-5/CA-12-3 “Policy Statement on Rental of Residential Other Real Estate Owned (OREO) Properties” (April 5, 2012)

Notes:

1. Section 304 of the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 (Public Law 115-174) restored sections 701-703, and repealed section 704, of the Protecting Tenants at Foreclosure Act of 2009 (Title VII of the Helping Families Save Their Homes Act of 2009, Public Law 111-22), which expired on December 31, 2014. Section 704 contained the Protecting Tenants at Foreclosure Act of 2009’s sunset provisions; the restored act does not include an expiration date. Return to text

2. These are the same examination procedures that consumer compliance examiners used previously to conduct Protecting Tenants at Foreclosure Act of 2009 reviews. Return to text

3. See http://www.federalreserve.gov/apps/contactus/feedback.aspx. Return to text

Tenant Tips: How to Read the Lease Before Signing

Tags

deposit, lease, repairs, rules, TENANT, terms, utilities

Nearly everyone is guilty of signing something they didn’t take the time to read at some point in their life. While it’s a somewhat common practice, it is usually best for a person to be aware of what they’re giving their consent to — and this is especially true for renters. For those getting ready to sign their first or fiftieth lease, protection starts with reading the fine print. The leasing contract lays out terms, conditions, and expectations that renters need to understand before they put their signature on the dotted line.

Fees and Deposits

The lease should spell out how much the rent will be for each month, but the rent isn’t the only charge that tenants should be aware of. The lease should contain the following:

• Rent: The lease should say how much the rent is each month and the acceptable forms of payment. It should state the date upon which the rent is due, and if there’s a grace period for late payments. It should also state how much late fees will be.
• Deposits: The most common forms of deposit are security and pet deposits, but each landlord will have their own policies. Ensure the lease states the details of the deposit, including if and how tenants can get their deposit back.
• Additional Charges: Any additional charges should be listed in the agreement, so tenants need to be sure they understand each line item. For example, the landlord may charge a processing fee for certain forms of payment, or a monthly wear-and-tear fee is the tenant has pets.

Utilities and Repairs

The lease should state which utilities are included in the rent, if any. From electric to water to cable services, landlords may choose to cover certain utilities as a perk of renting with them. Renters need to know that they need to cover so they can plan their budgets accordingly. Additionally, not all leases state that landlords pay for all the maintenance and repairs to the property. In some cases, tenants will be responsible for smaller projects that keep the home in good shape like tending to the lawn or replacing the air filters. What a tenant is responsible for will often change how they will budget money or time month-to-month, meaning it is important to understand these things before signing. If a tenant has questions about any financial matters on the lease, they should speak with their potential landlord to understand what is needed from them.

Rules and Other Details

This section of the lease should give the landlord’s policies for how they tenant issues will be handled over time. Tenants need to understand the renewal policies, including rent increases, so they can make better long-term plans. This should also include when the lease starts, when it ends, and what’s included. If a refrigerator and a dishwasher come with the unit, this should be spelled out in the agreement. Tenants should also have the address of the property as well as the address and contact information of the landlord and/or property managers and caretakers.

The rest of the lease should give details about what the tenant can and cannot do. This may include information about the types of pets allowed, what fees are associated with potential damage, and whether or not tenants will be subject to routine inspection. It should state quiet hours of the property and if there are storage facilities available. Finally, the lease should set the terms for who is allowed to stay in the property, where the tenant is allowed to park, and if there are any insurance requirements.

Reading a lease over may take some time and brain power, but tenants who make the effort will usually have an easier time while living on the property. Once a person knows what they can expect, they can plan their time and money accordingly.

Anthony Gilbert REALTOR® ABR®

The REALFX Group – Washington
7829 Center Blvd Suite 309
Snoqualmie, WA 98065

The REALFX Group – Texas
2303 Ranch Road 620 S Suite 135
Austin, TX 78734

Dont ignore the boilerplate

Tags

landlord tenant contract lease realtor commission

Our group has frequently discussed the value of using a contract to lease before signing an actual lease.    While a contract to lease may serve the purpose of setting out what happens if  the application is declined by the HOA  or the tenant fails the background check,  it can also be abused by realtors  for their  own personal gains.

A client used a realtor to obtain a tenant, and after six months the tenant offered to purchase the leased premises.  About a week before closing the realtor popped up and demanded a 6% commission on the sale.

It turns out that in the boilerplate of the contract to lease was the following provision:

SALES: In the event that the subject property is sold to any tenant or occupant identified in the Lease or any member of their immediate family or any entity in which they have an interest during the term of the Lease (or any renewal, extension or new lease term), Landlord shall pay the Brokers (to be split equally) a sales commission equal to the greater of  6% of the sales price or the amount set forth in Landlord’s listing or other brokerage agreement with Listing Broker. This provision shall survive any subsequent agreement between Landlord and Tenant.

This appears to give the realtor a perpetual right to claim additional commissions  every time the tenant  renews the lease or purchases the property.

I have seen other versions of this same form bearing the Florida Realtors logo and copyright from Form Simplicity  that do not have this clause,  so it remains to be determined  if this clause is an actual part of the copyrighted form or was added in by this particular realtor.   Nevertheless, this highlights the point that realtors generally have no fiduciary duty to their clients.   This means that they can legally advance their own interests to the detriment of their clients,  as was the case with this life time commission agreement.

Bottom line:   you have to read every word of a contract, even the “boilerplate,”   or have an attorney review  any contract before you sign it.

Broward County, Florida landlord-tenant ordinances

Tags

broward, certificate, discrimination, florida, LANDLORD, ordinance, registration, section 8, TENANT, walk through

Chapter 20, Article 9-a:  LANDLORD-TENANT WALKTHROUGH INSPECTIONS. 1978.

This ordinances makes it a criminal misdemeanor for the landlord to accept any deposit money from a tenant without having conducted a joint walkthrough inspection of the premises and making a written list of the defects signed by both parties.

Chapter 39, ARTICLE IX½. – LANDLORD REGISTRATION AND RESIDENTIAL RENTAL PROPERTY INSPECTIONS PROGRAM. 2013

Landlords of residential property located in unincorporated Broward County are required to obtain a certificate for $75.00 annually, for each property,  disclosing the name and contact information of the owner and landlord, and after the property has been inspected by code enforcement.

SECTION16.5 – 35 DISCRIMINATORY PRACTICES IN REAL ESTATE TRANSACTIONS.

Protected categories:  race, color, religion, sex, national origin, age, marital status, political affiliation, familial status, disability, sexual orientation, pregnancy, gender identity or expression, veteran or service member status, lawful source of income, or being the victim of dating violence, domestic violence, or stalking,

Prohibited conduct:  to refuse to sell or rent, or negotiate therefore,  or to publish any restriction, based on a protected category.

Condo assn faces liability for conversation after placing evicted owner’s possessions in storage

Tags

83.62, association, bailment, condominium, conversion, florida, theft, writ of possession

A condo owner acquired title subject to an existing mortgage foreclosure, which he apparently was unaware of,  as he was surprised to find a writ of possession on his door on April 10, 2012.  Also surprising,  the Dade Sheriff executed the writ a mere two days later,  catching the owner with many of his possessions still at the premises.  Rather than let the sheriff remove the owner’s personal possessions to the curb,  the associations property manager took it upon himself to have the property placed in the building’s parking garage,  where he placed yellow barricade tape around it, purportedly to deter theft.

Thereafter the owner’s key card was deactivated and he was refused entry to the condominium to recover his possessions.  Later, the association manager called the owner stating that his possessions had been disposed of.   Subsequently the associations security guard asked if he could have the contents of the owner’s storage unit, and upon the owner’s refusal, he was refused the return of his property.

The owner filed suit for conversion and bailment and it was dismissed on motion of defendant.  On appeal,  the 3rd DCA ruled that bailment was inapplicable as the owner had not entrusted his property to the association.  But conversion was applicable, as conversion “constitutes the exercise of wrongful dominion and control over property to the detriment of the rights of the actual owner.

The associations defense of immunity under §83.62(2) of the landlord tenant statute was rejected as a landlord tenant relationship did not exist between the association and the owner.

Editors note:  §83.62(2) states “neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed.”   Thus,  there may not be immunity in the event that the tenant’s property is not removed upon execution of the writ of possession.

The appellate court also noted that they were not suggesting the owner would prevail,  only that he had a cause of action for conversion of his property.

Ice v. The Cosmopolitan Residences on South Beach  No. 3D15-2787,  Third District Court of Appeal State of Florida December 13, 2017