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Tenant rights

Tenant rights vary by state, but include the right to safe and habitable housing, privacy, and non-discrimination.

Michael N Bress | Oct 17, 2019

THE EVICTION PROCESS IN FLORIDA: A STEP-BY-STEP GUIDE

INTRODUCTION An eviction is when a landlord forces a tenant to move out. To evict a tenant in Florida, a landlord must follow the procedure governed by Chapter 83 of the Florida Statutes. Failure to follow the proper procedure could lead to an eviction suit being dismissed, or result in the tenant being awarded fees and costs or even damages. Common grounds to terminate a tenancy are when a tenant fails to pay rent, violates the rental agreement, or violates local, state, or federal law. Other grounds include the absence or expiration of a rental agreement. The following are the main steps required to evict a tenant in Florida. (1) TENANT NOTICE The first step in the eviction process is the landlord must give the tenant a termination notice. The amount of notice required depends on the grounds for terminating the tenancy. Termination can be for cause (for non-payment or non-compliance) or without cause (when there’s no lease agreement or the agreement has expired). (B) TERMINATION WITH CAUSE FOR UNPAID RENT, the landlord must give the tenant a three-day notice to either pay the unpaid rent or vacate the unit. If the tenant pays the full amount within three days, minus weekends and holidays, the landlord must accept the payment. If the tenant offers the landlord less than the full amount, the landlord must reject the payment or will have waved the right to pursue the eviction until a further breach occurs. If the agreement has an anti-waver clause, providing the landlord can accept partial payment and still pursue the eviction, the clause may be upheld by the court. FOR A VIOLATION OF THE RENTAL AGREEMENT, the landlord must give the tenant a seven-day notice to either fix the violation or vacate the unit. If the tenant fixes, or “cures,” the violation within seven days, the landlord must not pursue the eviction. FOR NON-CURABLE AND REPEAT VIOLATIONS, a landlord must provide the tenant with a seven-day notice. Unconditional-quit notices are for non-curable violations such as a serious destruction of property, or a violation that has reoccurred within a twelve-month period. These notices do not give the tenant an opportunity to cure. The tenancy is terminated and the tenant has seven days to vacate the property. If the tenant does not leave, the landlord can file a complaint for eviction. (C) TERMINATION WITHOUT CAUSE IF THERE IS NOT A WRITTEN LEASE OR A LEASE WITHOUT A SPECIFIED PERIOD OF TENANCY, the landlord can terminate the tenancy at will. In such cases, notice is not required. Not unless a local statute or a written lease of unspecified duration states otherwise. Notifying the tenant, however, is recommended as a courtesy and also it might help to avoid additional damage to the property. FOR A WEEK-TO-WEEK LEASE, notice must be given seven days before rent is due. FOR A MONTH-TO-MONTH LEASE, notice must be given fifteen days before rent is due. Miami, however, has a special law that requires a thirty-day notice to terminate a month-to-month tenancy without a specific duration. FILE THE EVICTION COMPLAINT If a tenant does not comply with the notice, the next step in the eviction process is to file an eviction complaint in the county where the property is located. Once an eviction suit is filed, the Clerk of Court must issue a summons for each defendant, and then a professional process server or the Sheriff’s office must serve the tenant with both the summons and the complaint. TENANT HAS FIVE DAYS TO RESPOND TO THE COMPLAINT Once served, the tenant will have five days, excluding weekends and holidays, to answer the complaint. If the tenant answers, the tenant may offer defenses. If the action is for unpaid rent, in order to contest the eviction the tenant will have to deposit the rent owed into the court registry. If the tenant does not respond to the complaint, the action will be uncontested and the landlord should file a motion for default judgment and schedule a hearing. EVICTION HEARING A hearing can be scheduled by either the landlord or the tenant. Once scheduled, the other party must be served notice. If the case is contested, both the landlord and the tenant will be given an opportunity to testify and to provide evidence to the court. At the hearing, the court will decide whether the tenant should be evicted based on the pleadings, testimony, and other evidence. REMOVAL OF THE TENANT If the court finds in the landlord’s favor, the Clerk of Court shall issue a writ of possession commanding the Sheriff to put the landlord back into possession. Once the Sheriff has served the tenant with the writ, the tenant will have 24 hours, minus weekends and holidays, to vacate the property. If the tenant does not vacate, the Sheriff will return to force the tenant out of possession. CONCLUSION Often, the best solution to a problem is to avoid the problem in the first place. This is why a landlord needs to be diligent in screening prospective tenants for potential red flags, and to draft rental agreements that reduce the potential for litigation. If a dispute does arise, however, an alternative to litigation is to try to resolve the dispute through mediation. Either way, if you hire an attorney, you should discuss what in your situation is likely to be the cost-effective approach.

Sara L. Messina | Jun 5, 2019

Avoiding Renter's Remorse

If You Are Renting from A Private Owner... When you consider a private residence for housing in North Carolina, you should check on the ownership of the property, and the source of the lease. There are a growing number of renters seeking legal help because a landlord did not have full ownership of a property. This has lead to renters being evicted because of the landlord's foreclosure or because the landlord never actually owned the house. A real owner has no obligation to allow a renter to stay, even if they have paid money or signed a purported lease. Speak to an attorney about running a title or tax record check. You should also make sure all the utilities are properly and legally installed on the property. Private homeowners might try do-it-yourself projects that leave you with shoddy electric or cable service. Illicit hook-ups are also the first warning sign of a scam landlord. If You Are Renting from a Company... Just because the property is owned or managed by professionals doesn't mean the renter has nothing to worry about. Check as many sites as possible featuring reviews of the community and the company. If your local office lacks an internet presence, other locations in the same state are often managed with similar protocols. Also, a lack of virtual presence could mean the landlord is not as professional as they appear. If you choose to visit a property, make sure you review the entire lease and ask questions of someone in authority. It might help to let the leasing office know you want such a person available when you view the property. Some leasing offices are staffed with personnel who are only meant to process paperwork, not answer questions about the legal contract you are considering. When you meet the person in authority, ask them about lease provisions that you might need changed, or that seem suspicious. You should also ask if they inspect inside the property regularly, and if or when that effects evictions or non-renewals of the lease. Also ask if they built the building themselves, so you know if a prior owner might be liable for structural issues, and ask what they do to prepare apartments between tenants. ALWAYS PAY YOUR RENT This is the number one way clients cause trouble for themselves. In North Carolina, a tenant does not have the right to decide to withhold rent. No matter how bad the landlord is, no matter what issues you have, pay the full rent on time. The law is setup so that a landlord has to mutually agree or a tenant has to sue or be sued before rent is reduced. If you and a landlord agree to a lower rate than what is stated in the lease, put it in writing as an amendment to the lease. Oral contracts are enforceable, but that often amounts to tenants and landlords giving conflicting testimony as evidence. A magistrate is going to want to enforce the lease. On that note... Get a Written Lease You can rent month-to-month on an oral lease in North Carolina. Your landlord would be allowed to increase the rent at the end of each rental period--at the end of every month! You would also only get a week's notice before the landlord could file for eviction. The eviction process itself is accelerated compared to the 30 days you get on an annual lease. Skip the hassle and uncertainty with a written lease. Read the entire lease. Do not skim it like it's the Terms and Conditions. The lease should specify the name and address of the landlord and tenants, the rent amount, the date rent is due, when rent is late, when the lease begins, and when it ends. This is the bare minimum for a decent lease. An attorney should check a lease a private landlord gives to you. I have seen leases with illegal late fees, terms that make the party who loses a legal battle pay attorneys fees, and more from cheap online leases. A consult with an attorney early is always cheaper than a lawsuit later. Don't Rent Until the Property is Ready Depending on the age of the property and length of the lease, you should expect some need for repairs during your tenancy. If the property needs significant repairs, don't sign a lease until it is ready. The lease makes you liable for rent whether or not you live at the property. Make sure to view the property before you sign, and make a checklist of items and their conditions for your own records. Be sure that: Windows and doors to the outside lock; Windows are sealed to the outside; Electrical outlets function; Clean vents and air filters; Batteries in smoke detectors; Toilets flush without issue; Water heats and doesn’t leak, and Any appliances are clean and run. Landlords are not required to provide appliances beyond toilets, sinks, and a tub or shower. The toilet might be an outhouse. Air conditioners and heaters are not required unless the temperature is outside a specific range for a number of days. Visit the property to know what you need to bring with you. When you get there Take Pictures If the landlord will permit it, take pictures of the property before you sign a lease. This will give an attorney or magistrate an idea of its condition before you had any effect on it. Once you move in, take pictures after any repairs are done. If a problem causes ongoing damage, take pictures periodically to show the progression of the damage. Always notify the landlord in writing if you need repairs. Even if you spoke to the landlord, send some form of writing and make sure it is dated. Texting with the landlord may be sufficient, but letters are better. Lastly, the Landlord Has Obligations A landlord has obligations for upkeep on certain parts of the property, as well as legal duties which protect a tenant's legal rights. A consult with an attorney would be the best way to confirm the specific duties within any one landlord-tenant relationship. However, every tenant should be aware of some basics, such as: The landlord has a duty of upkeep and repair on common areas like shared hallways or landscaping. If the landlord does provide appliances, they need perform their intended function. Any repairs must be made in a timely manner, but realize that this provides a landlord time to review the damage and find professional help. The landlord is obligated to follow the eviction process, which includes giving the tenant notice of intent to file eviction before going to court. A landlord cannot simply lock out a tenant. A landlord must also continue to provide utilities if they are part of the rent paid. This applies even if you are late on rent or being evicted. They can only cut off the utilities if a court has evicted you, and you have reached the end of the eviction process.

Neil Scott Greenbaum | May 30, 2019

5 THINGS YOU MUST KNOW BEFORE YOU SIGN A COMMERCIAL LEASE

PART I At some point, every business owner will be faced with having to sign a commercial lease. Before doing so, there are (at least) 5 things you must know. 1. Your rent payments may be higher than you think Unlike rent payable on a residential property lease (such as a house or apartment), commercial rent payments are not limited to the base monthly rent. ‘Base Rent’ is the minimum or base amount of rent set out in the lease agreement, excluding any other additional rents or costs. It is customarily tied to a per square foot calculation that is the negotiated rent that you are required to pay. For example, if you rent a 3,000 square foot store and the price per square foot is $15, your base rent is $45,000 (3,000 x 15 = 45,000). This is the amount you will have to pay each year to rent the store. This amount is further divided to calculate your monthly rent payments. In this example, $45,000 payable over 12 monthly payment equals $3,750 per month (45,000/12 = 3,750). Therefore, the monthly base rent for this lease is $3,750. That amount may not, however, be the total monthly rent due. Many commercial leases include ‘Additional Rent.’ This item includes ‘Common Area Maintenance’ (CAM) charges, items that the landlord passes through to the tenant to cover the operating expenses of the property. Examples of such charges might include maintenance of common areas, lighting, plumbing, parking lot maintenance, roof repairs, etc. These fees can add up to be greater than the Base Rent. They are typically passed through to the tenant on a pro rata basis based upon the square footage leased by the tenant. To calculate your pro rata basis, divide the fraction of the square footage of your rented space by the total square footage of the property. In our example, your store is 3,000 square feet. Let’s say it is located in a shopping center totaling 100,000 square feet of retail space. In this example, your pro rata share will be 3% (100,000/3). Therefore, if the landlord projects that the Year 1 (that is often what the first year of your lease will be called) charges will be $100,000. Because your pro rata share for the property is 3%, your share of the CAM payments is $3,000 for Year 1 ($100,000 x 3% = $3,000). $3,000 divided monthly is $250/month (3000/12 = 250). Therefore, when paying your monthly rent, you will have to add $250 in CAM to your $3,750 in base rent. Your monthly rent payment (for Year 1) is now $4,000 per month. CAM is not the only addition to base rent. Some commercial leases may contain additional rent payments that are added to the base rent. You should make certain that you understand all of the rent that will be payable for the leased premises before signing a commercial lease. If you are thinking of entering into a commercial lease, you should certainly have an attorney assist you with the transaction. Should you find yourself in this position, contact Greenbaum Law Firm, P.A. to schedule a consultation today. © 2019 Greenbaum Law Firm, P.A. All Rights Reserved PART II At some point, every business owner will be faced with having to sign a commercial lease. Before doing so, there are (at least) 5 things you must know. 2. You can’t change your business concept during the lease term Many businesses change the direction, or pivot, their business concept. For example, Starbucks initially sold espresso machines in coffee beans, only later pivoting toward selling freshly brewed coffee (see how that worked out for the them). A commercial tenant may ordinarily only use a leased premises for the specific purpose that the Landlord has approved in the lease. The section of the lease dealing with this issue is often referred to as ‘Permitted Use’ and once agreed upon, may not be changed without landlord consent, which may or may not be granted by the landlord. For example, if the permitted use of the tenant is to warehouse and distribute electronic equipment, the tenant may not thereafter begin to manufacture clothing without the written consent of the landlord. As the landlord has no obligation to consent to the new business concept, the tenant may be prevented from using the premises for that new business. 3. You may not get your security deposit back A security deposit is that amount of money that a tenant pays to a landlord to guarantee that the tenant will satisfy all of its obligations under the lease agreement. Customarily, the security deposit will be equal to 1-2 months’ worth of base rent (in our example, $3,000-$6,000, based upon a $3,000 monthly base rent). The tenant pays the security deposit at the beginning of the lease term and the landlord holds it for the entire lease term to ensure that the tenant does not default on the terms of the lease or otherwise damage the property. Upon lease end, the landlord will inspect the property to ensure that there is no damage (ordinary "wear and tear" is commonly excluded). Sometimes, if the tenant is in default of the lease, for example, having failed to pay the monthly rent on time, the landlord may be permitted to deduct the missed rent from the security deposit. At the end of the lease term, the tenant will receive the remaining deposit back less any withdrawals for repairs or missed rent. It is important to note that when a lease is ending, it is the landlord who makes the sole determination as to necessary repairs and damages. Often, this may not work in the tenant’s favor. If you are thinking of entering into a commercial lease, you should certainly have an attorney assist you with the transaction. Should you find yourself in this position, contact Greenbaum Law Firm, P.A. to schedule a consultation today. © 2019 Greenbaum Law Firm, P.A. All Rights Reserved PART III At some point, every business owner will be faced with having to sign a commercial lease. Before doing so, there are (at least) 5 things you must know. 4. Even if the tenant is a corporation/LLC, its owner(s) may be personally liable Many business owners use a corporation or limited liability company (LLC) to serve as the tenant under a commercial lease. By doing so, the entity, and not the individual owner (or shareholder or member, as the case may be) is responsible for the obligations under the lease. However, just because the corporation or LLC is the tenant of record does not mean that the owner/shareholder/member will be completely off the hook. Many commercial landlords require a personal guaranty when entering into a commercial lease. A personal guarantee is a promise made by an owner, shareholder or member (or more than one) to personally pay the rent or for any damage to the property in the event that the corporation/LLC tenant is unable to do so. Even though the entity is the official tenant of record, should the tenant fail to meet is obligations under the lease, the landlord will seek payment from the individual guarantor or guarantors, as the case may be. It is possible for a personal guaranty to be limited or altogether removed, however, this must be done when negotiating the lease terms prior to lease execution. 5. You may not be able to get out of the lease before the termination date Despite the best of intentions, businesses often cannot remain at a leased premises for the duration of the lease term. Sometimes, this is for a good reason, such as the business growing too large for the space. Should this happen, depending upon the reasonableness of the landlord, there are ways to terminate the lease early or exchange the premises for another property. Most of the time, however, a tenant will wish to terminate a lease because business has suffered and the business can no longer sustain paying the rent for the space. When this happens, tenants often look to sublease or assign the leased premises to a third party. A sublease occurs when the tenant’s rights to the property (or a portion thereof) under the lease agreement is transferred to another a third party for part of the residual lease term. For example, if there are 12 months remaining, the tenant may attempt to sublease the premises for 6 months. During the sublease, the original tenant remains liable for the obligations under the lease agreement. The tenant may also assign its rights under the lease. This happens when there is a total transfer of the tenant’s rights under the lease agreement to a third party. With lease assignments, the tenant is usually no longer liable for the obligations under the lease agreement. The tenant’s rights to either sublease or assign the lease agreement are provisions that must be negotiated into the lease. Often, they are not allowed without the landlord’s prior written approval, which may be withheld by landlord it its sole discretion. If you are thinking of entering into a commercial lease, you should certainly have an attorney assist you with the transaction. Should you find yourself in this position, contact us today.