The Dangers Of Doing Favors For Residents
by Brian P. Wolk, Esq.
Any good property manager will tell you how essential customer service is to running a successful apartment community or property management company. In fact, most corporate offices will attempt to measure the amount of satisfaction current residents have through the use of survey tools. Making your residents happy has many positive consequences. Most importantly, it increases resident retention. After all, it is a lot less costly and time consuming to renew your existing residents than to market those units again and deal with the expenses associated with move-out. That point is magnified even more in these troubled economic times.
One of the key components of your residents' satisfaction is how the property manager communicates with them. Are service requests being responded to promptly? Is the property manager returning phone calls and responding to emails quickly? So with customer service and resident retention being high on the agenda of most property management companies, it is no wonder that many managers feel pressure from their corporate office and their knee jerk reaction is to accommodate residents who make requests which initially do not sound unreasonable.
This article will point out situations in which an innocent sounding request made by a resident can result in massive problems for the property manager if that request is granted. You will see examples when property managers acting in good faith and who sincerely are looking to help their resident end up paying dearly in time and money for this altruism. Like the saying goes, no good deed goes unpunished!
Favor Scenario Number 1- Taking personal checks at Move-In
You have been trying for weeks to rent the one bedroom apartment next to the parking garage that nobody wants. Two months ago, Arthur, a prospect, walked into your management office unannounced and declared that he wanted to lease a unit at once. Ultimately, Arthur filled out his application paperwork, and the next morning executed a lease to begin that day, receiving a copy of the lease and the keys.
Your normal policy is to require certified funds prior to executing the lease, but Arthur claimed he was strapped for time, and smoothly represented that his two personal checks covering the security deposit and prorated rent would not bounce. Arthur's credit report results were good, so you took him at his word. Ten days later, you find out that Arthur was actually strapped for cash when his checks bounce. Now you are facing the prospect of filing an eviction without ever collecting any money under the lease transaction.
Favor Scenario Number 2- Allowing Third Party Access
Your resident has lived at your community for the past five years and is well liked by just about everyone, including you! During a conversation with the resident last year, you learned that she has a drug dependency condition. Sadly, the resident was arrested for heroin possession and incarcerated. She is not able to post bail. A few days ago, a man claiming to be the resident's son visited your office and told you that the resident will be in jail for a very long time. He told you that he had the resident's authority to clear out the unit and turn in keys. You really felt sorry for the resident and decided to open the apartment door the let the alleged son enter the apartment home. Not only did you open the door to the unit, you also have opened the door to potentially huge lawsuit.
For what reason you ask? You had no authority to allow anybody to enter into the apartment home except the resident. This resident could hold your owner responsible for all of her personal property that was removed.
Worse yet, if you took back possession of the unit, the landlord could be liable for triple rent under the landlord/tenant act, and potentially triple the value of lost property under civil theft statutes.
In this case, you should have demanded proof that the son had the authority of the resident to enter the unit, possibly in the form of valid power of attorney. This scenario also creeps up in the context of the deceased resident. Unless the third party has received authority from the probate court and displays that proof to you, the third party should not be allowed into the unit, no matter how sad the story is. It is irrelevant that it is a close family member or the only remaining family member. You have to confirm the third party has legal authority to enter the unit; it is as simple as that!
Favor Scenario Number 3- Accepting Late Rent Payments
Jethro has always been late paying rent. Not only does he pay the rent late, he usually pays about two weeks after the expiration of the Three Day Notice. Jethro is in great financial distress, and you really feel sorry for him. He has assured you that he will get back on his feet and start a new job. Besides, you reason that if you need to evict him later, at least the judge will know that we bent over backwards to try and assist the resident before evicting.
After six months you decide that you cannot allow Jethro to continue this delinquent payment arrangement, and you send his file over to your eviction attorney. This example is perhaps the most common scenario in which extra work on your part to help a resident backfires. The unseasoned property manager does not realize that the eviction may become incredibly more complicated. Many judges will strictly interpret the wording of the lease and Section 83.56 of the Florida Statutes [Editorís Note: see New Jersey statutes] and allow the landlord to evict if payment is not made before the expiration of the Three Day Notice.
However, there are also a significant number of judges who may find that there is an issue regarding waiver. This simply means that by not enforcing the lease terms as written, the landlord's subsequent actions modified the lease. Thus, the resident is no longer obligated to pay the rent by the due date contained in the lease. Favoring one tenant in this way may also trigger fair housing concerns, as discussed in more detail below.
Favor Scenario Number 4-Storing Personal Property
Donovan has three kids and is a single father. You feel terrible that the sheriff will be executing the writ of possession in a few minutes. Donovan now calls you and tells you he is leaving, but would like you to hold all personal items in your office that he was unable to move, and he will come by later to pick them up. Seems reasonable enough, right? Not so fast! You never want to exercise control over the personal items of the tenant. What if Donavan fails to return? You are not able to throw out those items, and in fact a bailment situation is created. That means the law requires that you exercise reasonable care while continuing to store these items. You probably see where this is headed. Donovan may later allege that items were damaged or destroyed, or even worse, he may claim that you stole expensive items that you believe never existed.
Favor Scenario Number 5-Becoming Vulnerable to a Fair Housing lawsuit
You should always keep in mind that when you do favors for your residents, there may be other residents who feel slighted, and if they are a member of a protected class, then you may be in violation of fair housing laws. it is unlawful to discriminate in the terms and conditions of a rental based on a person's race, color, religion, sex, national origin, familial status, handicap or military status.
For example, if your tennis courts close at 7:00 p.m. in the summer, but children can only use the courts until 5:00 p.m., there may be no reasonable reason to justify this policy, such as a safety motivated concern, because it does not become dark outside until after 7:00 p.m. In this case, your policy was instituted at the request of some of your older residents who formed an informal tennis league. In the process, you may become vulnerable to a fair housing lawsuit, as it would appear that families are not having equal access to the amenities of the apartment complex.
Reprinted by Permission of the Law Offices of Heist, Weisse, Davis & Wolk P.A. Visit www.evict.com or call 1 800 253 8428